Tuesday, January 22, 2008

Cincinnati defendant moves to dismiss complaint in Elektra v. Licata

In Elektra v. Licata, pending in Cincinnati, Ohio, the defendant has moved to dismiss the complaint for failure to state a claim for relief.

The defendant is represented by Albert T. Brown, Jr., of Cincinnati.

Motion to dismiss complaint*

* 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






4 comments:

Jadeic said...

An eloquent, and in several respects, original response by Licata's attourney. Basically he has lobbed the ball back over the net - let's hope it bounces twice before the RIAA can reach it.

Dave

By the by Ray - I approve the side bar of interesting quotations. A shrewd move.

Anonymous said...

an order dismissing within complaint based upon the declaration filed concurrently herein and attached hereto. This motion is supported by the memorandum annexed hereto and incorporated herein.

I just love lawyer-speak. It makes computer programming, or setting your VCR clock, absolutely simple in comparison. :^)

the substance of plaintiffs, claims are that materials in which plaintiffs had a copyright were observed on Mr. Licata’s computer hard drive on June 29, 2005 at 8:30 p.m.

Now that's an excellent summary of the vacuity of the plaintiff's entire filing.

information and belief, must step across some border of plausibility before a plaintiff can be allowed to take up the time of a large number of other people with the right to do so

Well, yeah!

The promise of increased litigation expense has been the linchpin of plaintiffs’ settlement demands

And THAT's what's wrong with our entire legal system.

-Dodge Magnum

Art said...

Motions such as this make me wonder why the defendant doesn't file a motion for a more definite statement (FRCP Rule 12(e)).

Plaintiffs claim the defendant had copyrighted material on his hard drive at a specific date and time.

When exactly did defendant download such material to his hard drive and from whom did he download it (USC 17§106(1))? Exactly to whom did defendant distribute the material and when exactly did the material get distributed (USC 17§106(3))?

If plaintiffs can't answer these basic questions prior to discovery, then how can defendant fairly respond to the pleadings? Without a more definite statement, then clearly the plaintiffs have failed to state a claim upon which relief can be granted (FRCP Rule 12(b)6).

Regards,
Art

Shane said...

"Motions such as this make me wonder why the defendant doesn't file a motion for a more definite statement (FRCP Rule 12(e))."

That would seem a tactical error since that would only prolong litigation. You don't want a more definite statement when you can file for dismissal based on failure to state a claim immediately--but that's just me guessing...