In Atlantic v. Njuguna, in South Carolina, the RIAA's response to Ms. Njuguna's motion for judgment on the pleadings was not to attempt to defend their boilerplate, 'making available', complaint, but to cross-move for permission to file an amended complaint, in the new format used in other cases, which abandons the "making available" language and which falsely alleges that the plaintiffs "detected an individual".
Opposition to Motion for Judgment on Pleadings Dismissing Complaint*
Cross-motion for Leave to File Amended Complaint*
Proposed Amended Complaint*
Reply Memorandum in Support of Motion for Judgment on Pleadings Dismissing Complaint*
* 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
10 comments:
"Plaintiffs identified an individual using on the P2P network KaZaA at IP
address 67.9.63.16 2005-10-29 on October 29, 2005 at 03:22:51 distributing 361 audio
files over the Internet."
Call me stupid, but doesn't "distribution" require proof that files were actually distributed...as in moving?
You're not the stupid one.
They're the stupid ones.
if the plaintiffs "identified an individual", why the hell did they need all the help from courts and ISP and so on!
Or is this just again one of those repeated missrepresentation of facts by some lying RIAA lawyers against a court of law?
When will the first judge sua sponte slap them hard once he had read that "individual at IP Address" misrepresentation in their court papers?!
It's IMHO about time!!
"Plaintiffs have
evidence of actual distribution of each of the copyrighted recordings at issue. They were
actually distributed to Plaintiffs’ investigators."
I do believe that the courts have found that distribution has to be to a party other than plaintiff's agents. OOPS!
The ammended complaint states "Plaintiffs identified an individual ... at 03:22:51 distributing 361 audio files over the Internet." Therefore, the time of distribution is one second long. Even with the fastest available [2005] computer and connection, it is impossible to distribute 361 songs in one second.
JoeN
in the world of fiction, all things are possible...
THE RIAA contends that it can amend its complaint to specify the details that were missing so far. As if they shouldn't be punished for not getting it right the first time around, despite all the practice they have in these cases now. Then they go so far as to say:
provides a list of copyrighted recordings that Defendant has, without the permission or consent of the copyright owner Plaintiffs, downloaded and distributed to the public.
Of course, as has been clearly pointed out here in other postings just this day on this blog, the RIAA has NO F------ IDEA how those sound files, or any sound files, actually got onto any computer at this point. THEY CLAIM that these files could only be present as proof of illegal downloading activity, but that is the sheerest of speculation on their part, and deserves no place in court documents that purport to reveal the truth. Such statements exist only to tar the Defendants, while trying desperately to keep the case alive.
Specifically, Plaintiffs allege that Defendant both “downloaded and distributed”
Let's see here. You can't prove "downloaded", and you can't prove "distributed", and making available is off the table, so you have NO CASE AT ALL!
Here's a question for Ray. Even when considered in the light most favorable to the non-moving party, doesn't that party have to actually show that it would be possible to prove their point? And not just that if this point was proven in some unknown and unforeseeable manner, that their case would then survive?
The point here is that the RIAA more than once contends that the Defendant is guilty of "downloading and distribution" of (alleged) copyrighted songs. Even if they weren't required to demonstrate at this time that this particular Defendant performed these acts, shouldn't they at least be required to show how you can prove such contentions at all? If required to do that, surly the RIAA's case would fail immediately.
Btw, how do "…the actions of the Executive and Legislative Branches demonstrate that making files available on P2P networks without the authorization of the copyright holder violates the exclusive right of distribution." What exactly do "actions" mean in a court of law?
In their cross-motion for leave to find amended complaint the RIAA now makes a new stab when they contend that the "distribution" occurred at the moment that the screen shot was taken. No evidence of any files actual being distributed, so by the RIAA's contention, files on a computer hard drive that someone can see now constitute "distribution".
Still no proof on how they have Identified the proper defendant – or computer! As has been pointed out, IP addresses don't identify computers. They identify broadband modems, at best.
It would be nice for the court to dismiss this case now for insufficiency, rather than after the Defendant has been required to spend months of time and 10's of thousands of dollars later in defending it, with the RIAA having nothing more then than they have right now.
- QED -
Isn't it about time one of these cases, with decent counsel for the defence (by which I mean not some poor sap acting for him/herself), got set down for actual hearing so a judge can kick some plaintiff butt?
I know that interlocutories are designed to give the defence full disclosure and to make sure that the case is properly pleaded and that an actual cause of action is alleged. What is more I can see why all this interlocutory shagging about is probably necessary in these cases given the paucity of the plaintiff's cases, but don't some of them actually have to get to the point of being heard on the substantive issues sometime?
Nick,
There have been several hearings in front of Judges on various matters. Including the "making available" as well as the admissibility of their star expert Dr. Jackobson (iirc). To the best of my info these are all waiting on answers back from the Judges. In the mean time discovery is technically occurring. I say technically because while the defendants have given over info (note, generalization) the Recording Labels have stalled, dodged and avoided any discovery reqeusts they can.
Basically, the Legal system is unfortunately slow, however "fast" is not always a good thing. In general it is in the publics best interest to have the judge weigh everything and get stuff right, even if unfortunately that makes things hard on innocent victims.
Comment rejected. Comment policies #4, 7, & 9.
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