Friday, December 28, 2007

New Contested Case in Phoenix, Arizona, Capitol v. Weed; Counterclaims Asserted for Abuse of Process, Prima Facie Tort, Conspiracy, and others

A new contested case has come to our attention, Capitol v. Weed, in Phoenix, Arizona.

Apparently the defendant was representing herself for awhile, but is now represented by two Tucson, Arizona, firms, Williamson & Young and Karp Heurlin Weiss, who have filed an amended answer with counterclaims for:

-declaratory judgment of non-infringement
-abuse of process
-civil conspiracy to use illegal investigators, commit extortion, and gain unauthorized access to a computer
-prima facie tort
-copyright misuse
-invasion of privacy
-copyright abuse and forfeiture
-deceptive trade and collection practices
-declaratory judgment.





Amended Answer and Counterclaims*

* Document published online at Internet Law & Regulation





Keywords: digital copyright law online internet 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 intellectual property






12 comments:

Jadeic said...

I love the tone of this piece - an all out blistering attack on every element of the RIAA case. The section on the illegality of the MediaSentry intervention in this process is particularly well aimed and should at last make them sit up and take notice that their position is becoming very precarious. Note to MediaSentry - if you are reading this guys - don't expect the RIAA to stand behind you if the shit hits the fan. You will need a good lawyer and, sorry to say, if you look around, all the good ones are working for us.

Dave

Anon #1 said...
This comment has been removed by a blog administrator.
Ray Beckerman said...

anonymous anon#1... i can't copy and paste comments, so i can't edit them... i can either reject them or publish them... why on earth would you comment on the defendant's last name? ... and why on earth would i publish a comment that did?

if you want your voice to be heard here you're going to have to be more careful...

Ray Beckerman said...

EDITED VERSION OF ANON#1'S COMMENT:
***********************************

.........................

I cheer to finally see a Defendant challenge (paragraph 15) from the very beginning the specious RIAA claim that, with no evidence to support it at all, that the infringement is "continuing". Even if the Defendant was guilty as sin, I'd expect them to stop it once they were sued. Why the courts haven't slapped the RIAA hard for claiming this in all their cases truly escapes me.

Now that the Defendant has answered, and affirmative defenses are in place, does this mean that the RIAA cannot cut and run by dismissal without prejudice, to escape paying lawyer fees?

I really like defense #3 that the Plaintiffs are illegally joined? This would be an immensely powerful argument, if it's upheld.

On defense #8, I'm left to wonder why the RIAA is taking to very long to bring these cases. Clearly the contention of ongoing and continuous infringement is nothing more than a bare faced attempt to sidestep the statute of limitations stated here, and as Defendant points out, they have *no* evidence of this continuous infringement to present. This is therefore absolute fraud on the court, and why does the court stand for it? This fact alone should call for dismissal with prejudice, and payment of all Defendant's legal fees.

Defense #10 is wonderfully new also. Illegal pre-texting in a John Doe suit. Love it! Especially because it's so true!

On Defense #18, of course Plaintiffs use P2P filesharing to their own ends. They pay lots of money to Big Champaign just to provide them with figures on what is currently popular on P2P networks. P2P exists to provide market research to the record companies, and as such IS A LEGITIMENT USE FOR THE TECHNOLOGY. (Mr. Judge, I wasn't filesharing, I was providing market data to the record companies.) Seriously though, how can they attempt to profit from it (pay for data about it), and sue over it at the same time?

Regarding counterclaims, same question as above. Now that counterclaims are filed, is the RIAA precluded from cutting and running, leaving the Defendant with their legal bills and the legal uncertainty of being sued again? Or would that other case where they claim that the RIAA cannot sue the same person over the same set of facts more than twice protect her? Especially since on Page 11 Paragraph 19 it's pointed out that this case has been dismissed and refilled at least once.

Excluding all illegally gathered evidence in Arizona (Counterclaim Count 3) would be a wonderful, and completely appropriate, thing.

If punitive and exemplary damages are awarded due to the RIAA's outrageous conduct, they need to be *big* in order to properly punish this litigation juggernaut.

There's a very worrisome statement on Page 17 at Paragraph 60. In this they seem to admit that the files illegally accessed by unlicensed investigators belonged to the Defendant. If they didn't, she wouldn't have any standing to counterclaim. Isn't this tantamount to admitting guilt? It seems a contradiction to their position otherwise that isn't cleaned up by later paragraphs claiming that files from some computer still unknown were publically printed in an attempt to embarrass and goad the Defendant into an unfair settlement.

On Counterclaim Count 9, I would want to use the declaration of Dr. Doug Jacobson, the RIAA's favorite computer forensics expert, to point out how *no* data is safe on any hard drive he inspects. That's major Invasion of Privacy

Making the RIAA the *real* party of interest in this case faces one huge problem. The RIAA itself doesn't own any of the copyrights in question.

It would have been nice to see the "Twomby" word here in indication of the insufficiency of the complaint. Lawyers this good, however, make me want to move to Tuscon.

(Nothing personal, Ray. I'd move to New York to have you as my lawyer as well.)


>Anon #1

Anonymous said...

Anon#1
paragraph 60 simply states that they have admitted to invasion of privacy by saying they have pulled these files from someone's computer. So if they want to say they downloaded files directly from alleged defendants' computers they need to face the consequences. It is nothing new it is all part of their boilerplate complaint across the board.
Keepn It Real

Art said...

I like this response. It is very complete. I especially like the improper joinder of plaintiffs. If you are being sued by multiple plaintiffs, then each plaintiff owns a subset of songs. For each set of songs owned by a single plaintiff, those songs are NOT owned by the other plaintiffs. Therefore, the defendants are prevailing parties against the other plaintiffs. As the prevailing party, the defendant would be entitled to costs and attorney fees from the other plaintiffs. Brilliant!!!

Regards,
Art

Shane said...

It seems that the RIAA's claims of infallibility are more than a little dubious. A poster over at Consumerist says that the RIAA regularly claims that non-existent IP addresses are sharing music.

"BY TKID929 AT 12/11/07 03:26 PM
I do the RIAA tickets we get here at the University I work for, they're insane. I get tickets for IP addresses that don't exist and are not even in our DHCP pool. No one could be using these addresses..."


http://gizmodo.com/gadgets/ripped/riaa-argues-songs-ripped-to-your-computer-for-personal-use-are-unauthorized-copies-332550.php#c3280274

This sounds like another area for discovery or cross examination.

(It is possible to post a public message to the poster to ask him for more info by going to http://gizmodo.com/commenter/tkid929/ and posting a comment. However, that feature does not email the poster and most people don't know to look there for info, that and the post I referred to is that poster's only one and the address maybe a throw away...)

StephenH said...

This response/counterclaim is very powerful here. I really like that MediaSentry may be an unlicensed investigator and if that is upheld, the defendant could strike RIAA's MediaSentry Evidence, probably leading to the case being dropped with prejudice or even MediaSentry facing charges.

I predict sooner or later, the RIAA will be hit hard on one of these counterclaims and have to pay a defendant or even modify or end this campaign.

Russell said...

I am looking forward to the mediasentry investigation techniques to be ruled on. This is becoming a common counter-complaint/defense. Sooner or later it is going to be taken seriously. But as of yet, I don't think any judge has ruled on this issue.

Russell said...

Personally, I think the RIAA is now playing Russian Roulette. I have seen the defenses over the last year evolve from 'I didn't do it' to 'the RIAA is acting illegally' From a defensive strategy to an offensive one.

They could afford to lose a few 'I didn't do it' (or rather drop those cases). They can't afford to lose any of the cases now. If a single counter claim sticks, the RIAA's current strategy is gutted.

The problem is that we have to wait until this comes about.

Anonymous said...

Ray,
Could you find a link to Exhibits A and B from the original? I could only find a link to Pacer, and $.08 adds up real fast for simple browsing. I wanted to see/compare the "screen shots" to the others we have seen.

Thx
proceng/GrokLaw

Anon #1 said...

Ray,

It was a joke. Perhaps a bad joke. Perhaps an inappropriate joke. Perhaps an unfunny joke. Perhaps a damaging joke. But it was just a joke.

And it doesn't bother me that you removed it.

>Anon #1