In Interscope v. Kimmel, in Binghamton, New York, the RIAA has filed papers opposing defendant's dismissal motion. Discovery has been stayed pending the outcome of the dismissal motion.
Memorandum of Law in Opposition to Defendant's Motion to Dismiss*
* 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
5 comments:
The RIAA case must be weak here because it is taking them 13 pages of filing + 4 pages of indexes to try and argue why this can't possibly apply to them. If it didn't apply, I'd expect a single page would do.
So let me see if I've got this straight in somewhat more generic terms. The RIAA is saying that none of the first 3 suits count towards the two dismissal rule for the following reasons:
Suit #1) Because the defendant was not named and did not participate?
Suit #2) Because the lawsuit was filed, but after 4 months, they couldn't serve the defendant?
Suit #3) Because the process server managed to do the basic fact checking that the RIAA never seems to do and found out that the father of the defendant shares the same name except for the middle initial?
Assuming I have those right, here are some questions I have:
1) Wasn't the defendant specifically excluded from the first suit and completely denied a chance to participate because of the ex-parte nature and expedited discovery? Since the defendant never had a chance to defend himself, isn't this a convoluted violation of the 5th Ammendment (nor be deprived of life, liberty, or property, without due process of law;)? I think Jammie Thomas would be able to argue that her property (to the tune of $200,000+) is being deprived and the action started outside of her ability to participate in the due process of law.
2) How can they claim suit #3 was technically against the father? They hadn't even done the least bit of fact checking to know that there were two potential individuals residing at the one address. The residence was the defendants LEGAL PERMANENT residence at the time, just not his current residence as he was living at school. The way I see it, that suit most definitely should count. It's not the defendants fault that the RIAA can't do basic fact checking before filing a suit.
In the time that I've been reading these cases and the RIAA responses, they seem to make an awful lot of assumptions. I've always believed assumption to be a bad idea. In fact, I've got an old Benny Hill skit that sticks in my mind about it. Scene opens with Benny at a blackboard and talking about why it is bad to assume. He writes it on the black board and then underlines to stress his point: "because it makes an ASS of U and ME". Imagine my surprise many years later when I hear a new twist to that one in a Steven Seagal movie: "Assumption is the mother of all f***ups".
You would think the RIAA could learn some common sense and verify their facts first, but I'm guessing they're too eager to try to preserve their dying cash cow (dead actually, if you want my opinion) and to scared that they'll lose it (again, already lost in my opinion) that they're not thinking. Oh well... all I can do is laugh all the way to the bank as I deposit the money I'm NOT spending on the drivel they want to push down our throats.
Further commenting as to Mike:
The actual rule, as quoted by the Plaintiffs is to twice dismiss "An action based on or including the SAME claim", NOT that the same defendant be named.
Plaintiffs in each of the cases must have believed that each of the suits were filed against the person they believed to be the person who they accuse of copyright violations. The fact that suit # 2 and suit # 3 actually was filed by accident against the father does NOT change the fact that the action was filed in regard to the SAME claim.
I think most of the RIAA's points will be dissected in the Defendant's Reply.
Why does the RIAA get away with not amending their first John Doe Suit to name the actual Defendant, as soon as it becomes Known? The Plaintiffs statement seems to imply the suit just sat there for a while before they dismissed it. Could it be that they dismissed right before the time the Court would dismiss on its own for lack of service of the Defendant?
It would seem to me that the "Proper" way to sue would be to notify the Defendants during the first case. And, if it was determined the wrong venue was used, shouldnt the COURT transfer the case to the proper district?
Of course we know the likely reason why they do things the way they do is that the first suit is not really a true suit, but an information farming mission. I seem to remember one of the judges saying that it looked like a way to avoid filing fees. They seem to only come up with the second fee for those that have refused to settle with them.
They also seem to suggest they should get a free pass because they added additional record company plaintiffs in the last case filed. They have a point there, but the solution is not to allow the case to continue as-is. The solution is to strke all but the newly added record company plaintiffs from the case.
Of course, I would guess that action would very much weaken their case. I say that because I am sure the original plaintiffs are the ones that they the best evidence such as actual copies of the downloaded songs. My guess is the evidence against the newly added plaintiffs is not as strong. Otherwise, they would have been part of the original suit.
Albert
They can't amend the doe/ex parte suits with the defendant's names, because they have no business being joined together and would end up being thrown out.
I appreciate the comments. I filed reply papers today on behalf of Mr. Kimmel, and addressed most of the points you guys have raised. Ray B. should have them up on his blog tomorrow; I would welcome any comments.
Richard A. Altman
Post a Comment