In Elektra v. Santangelo II, in White Plains, NY, the RIAA has filed papers opposing the defendants' motion for leave to amend their answer.
Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Leave to Amend their Answer*
* 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
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Moreover, two of the purported claims (civil conspiracy and deceptive trade
practices) are premised on Defendants’ allegations that Plaintiffs wrongfully brought an action against them, accused them of acts that allegedly do not constitute copyright infringement, and acted collusively in bringing and litigating cases similar to this one. As such, both of these proposed claims are barred by the Noerr-Pennington doctrine, which immunizes a party from liability for legitimate efforts to protect its rights.
I would truly hope that the Plaintiffs cannot prevail on this argument because this would mean that there are no checks on litigation that can be brought against you, no punishment for malicious, extortive, or just plain stupid, litigation brought against you, as well as no deterrents preventing a well-funded adversary who has filed such cases for reasons clearly other than wining actual compensation in the courts, from running wild and roughshod over any hapless litigant unfortunate enough to get in their sights.
Today, copyright infringers use various online media distribution systems to download (reproduce) and unlawfully disseminate (distribute) to others billions of perfect digital copies of Plaintiffs’ copyrighted sound recordings each month. As a direct result of piracy over peer-to-peer networks, Plaintiffs have sustained and continue to sustain devastating financial losses.
How cleverly new words are created (online media distribution systems), and old words are redefined (download (reproduce)) to make this square peg attempt to fit into the round hole of the law as written.
Also, how casually the assertion that devastating financial losses are due in large part, if not solely to peer-to-peer networks. Didn't someone once point out that say the Big Lie long enough, and eventually it will be taken for truth without ever being proven as such?
First, as noted above, filing lawsuits is clearly protected.
Even bad, wrong, non-proven lawsuits without recourse for those being sued? What kind of country – and justice system – do we have here?
Second, Plaintiffs are aware of no authority to support a claim that copyright holders may not join together as co-plaintiffs to address a common injury, or that they are barred from settling such cases together, nor do Defendants cite any.
Oh really? And can you cite any authority that does allow it? If no controlling authority exists either way, then it needs to be settled here and now – not dismissed without any resolution!
No Court Has Ever Recognized A Cause of Action for Failure To Warn of Potential
Liability for Copyright Infringement.
Same argument as above.
For all of these reasons, even if a claim for duty to warn of copyright infringements was cognizable, which it is not, Defendants cannot allege any of the elements of such a claim.
But weren't attempts made to warn other users. Attempts that may have been blocked by AOL parental controls or other methods? If so, wouldn't this indicate that Plantiffs knew that they needed to warn? How can you claim that there is no such need, when you tried to do it yourself – and did it very badly?
Under New York law, a claim for civil conspiracy requires, among other things, an actionable underlying tort or wrong.
How about suing large numbers of people under highly questionable circumstances, after lying to them and attempting to coerce them into paying extortionaire payments, solely to be used in a publicity campaign of fear against all file sharing? Would that qualify?
In essence, SafeNet took a snap-shot of what was essentially a public website, freely open to all on the Internet.
I don't believe you can compare a directory of files to a pubic website. If you did, then Google should be indexing everyone's Kazaa file shares. Once again the Plaintiffs are attempting to tell the technologically naïve that Apples are now equivalent to Oranges, and peer-to-peer programs are nothing more than web browsers.
Of course, if share directories were really this open to the Internet, then adding files to them would be as easy as copying files, or deleting files, in them, meaning that evidence could be planted, or the RIAA through SafeNet itself could be deleting alleged infringing material.
“The filing of a meritless lawsuit or administrative action, even if for the purpose of harassment, does not involve a threat of force, violence or fear.”
How can anyone in their right mind not believe that the threat of a massively costly lawsuit does not engender immediate and severe fear in the average person? That's an unbelievable statement!
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