The defendant's motion to dismiss the RIAA's boilerplate complaint in Elektra v. Schwartz, has now been fully briefed, as the RIAA has served its opposition brief, and Ms. Schwartz has served her reply brief.
RIAA's Memorandum of Law in Opposition to Motion for Judgment on Pleadings*
Defendant's Reply Memorandum of Law in Support of Motion for Judgment on Pleadings*
* Document published online at Internet Law & Regulation
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
3 comments:
Ray,
You are so concise and deliberate in your response.
I bet it pisses the RIAA off that they have to write 45 pages to disguise the fact (and try to overwealm and confuse) they have no case.
It doesn't bother Mr. Gabriel. He gets paid $375 per hour for that drivel.
It should bother his clients... but they seem to be a little light in the brains department.
To quote a famous political figure, here they go again. It's particularly egregious of the RIAA to contend on page 2 (or 6, depending on the page number that you look at) that:
Plaintiffs attached to their Complaint substantial evidence of Defendant's infringement, namely, the user log reflecting the contents of Defendant's Limewire share folder...
Do we know this is the Defendant's infringement? Do we know this is the Defendant's computer? Has the Defendant's computer ever actually been inspected? What was found? According to the RIAA, these copies of sheets of paper prove all – while in reality they prove nothing!
On Page 4 (8) they must either think they are the U.S. Congress, or are hoping for an activist judge, as they try to rewrite the plain text of the copyright law with:
Indeed, it makes no sense generally in copyright suits to require a plaintiff to allege with specificity when and how an infringement occurred since such actions are not typically done in plain sight of the copyright holder.
Then they allege continuous infringement on page 5 (9) because:
[T]he infringement has been taking place for as long as the sound recordings have been available on Defendant's computer.
Available to who? Gee, I thought at best it could only be as long as they were in the share folder, the computer was running, the Kazaa program was running, the Internet was connected, and the stars were all aligned. By the RIAA statement, a turned off, unplugged, computer with music files on it somewhere may well be continuously infringing their copyrights, since someone might walk up to it.
And oh by the way, when did they first become available? Are they still available? Can you prove your statement that they either are still, or are now not, available? And how do you know it was the Defendant's computer?
I notice new terminology here as well. Now these listings are user logs. I can't wait to see what New-Speak they will dream up next.
The rest of the RIAA's filing is simple garbage that they appear to hope will past the Scale Test (i.e. put all the paper on a scale, and if the weight is high enough then it must be right).
What I wouldn't give for a few minutes to sit down in private with the Judge and just point out all the ignorance, inconsistencies, and lies in the RIAA's filing.
Ray, your response is brilliant!
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