Saturday, January 12, 2008

RIAA Moves to dismiss counterclaims in 2 Brooklyn cases, Maverick v. Chowdhury and Elektra v. Torres

The RIAA has moved to dismiss all 4 of the counterclaims interposed by each defendant in 2 Brooklyn cases, Maverick v. Chowdury and Elektra v. Torres.

The counterclaims are for attorneys fees, a declaratory judgment of noninfringement, copyright misuse, and antitrust law violations.

Memorandum of Law of Plaintiffs in Support of Motion to Dismiss 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






3 comments:

Anonymous said...

Nice to see that the RIAA lawyers finally discovered the Twombley ruling.

Can't wait to see the reply...do we really need a crystal ball on how Trager will rule....?

-B

Anonymous said...

Plaintiffs brought this action seeking redress for the infringement of their copyrighted sound recordings pursuant to the Copyright Act, 17 U.S.C. § 101 et seq.

Not true. Plaintiffs brought this action to gain maximum publicity for the purpose of intimidating P2P filesharers, and to destroy the Defendant for defying them by not settling to their extortionaire demands from the beginning. There is no possible redress that they will receive in this trial, and they know that.

As demonstrated below, Defendant has put forth four cookie-cutter counterclaims that have routinely been dismissed by other courts.

What response do you expect to a boilerplate suit? And none of these claims have yet to be considered at trial, where they should be decided.

The Court should also dismiss Defendant’s second counterclaim seeking a declaration of non-infringement because it is duplicative and unnecessary.

Oh, this one is absolutely necessary! Without a trial there is no vindication. Everyone knows by now the RIAA dismiss without prejudice tactic to run from any case they might lose, despite having "already gathered substantial evidence against the Defendant" as stated in other cases, denying both vindication, and attorney's fees to the hapless Defendant. This claim is neither duplicative, nor unnecessary. It is, or should be, every Defendant's right to seek complete vindication in the court when wrongly accused. Maintaining this counterclaim is the best possible method of achieving this in the face of the RIAA's outright gaming of the judicial system. I see it as the most important counterclaim of all,

Defendant’s declaratory judgment counterclaim raises no legal or factual issues beyond those already raised by Plaintiffs’ Complaint.

This is an outright lie. There are 2 sides in this case, not just the RIAA's side. This brings up the most important issue of all that the Defendant desires a judgment at trial by this court on the issues and evidence, and that the RIAA should not be allowed to Cut and Run solely at the moment of their own choosing, after having "punished" this Defendant sufficiently, while denying him his day in court, full vindication, and all attorney's fees and other costs incurred solely by the RIAA's ill-founded suit.

Defendant’s third counterclaim alleging antitrust violations should also be dismissed, as it has not been adequately pled under the standard set forth in Bell Atl. Corp. v. Twombly,

So which is it? Does the RIAA hate, or love, Twombly? And wasn't the counter-claim filed pre-Twombly, in April of last year? If so, Defendant should at least be allowed to amend it to come into compliance with the new pleading standard set by Twombly.

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.

Here they go again. "billions of perfect digital copies". This Defendant neither distributed billions of any copies, and compressed MP3 files are FAR FROM perfect digital copies of the original CD recordings. This whole statement is a load of horse hockey.

holding that users “who upload file names to the search index for others to copy violate plaintiffs’ distribution rights

All post-Napster P2P systems DO NOT upload file names to any search index. This was their reaction to dealing with the Napster decision. As such, the RIAA is feeding us total Crap here by talking about systems that don't even exist any longer, in the faint hope that someone will believe that this is exactly what happened here. It didn't. It's wrong. And it has no place in these papers to this judge.

Defendant was found distributing the digital music files found on Exhibit B to the Complaint on September 28, 2005.

Oh really. Distributing to who?

After attempting unsuccessfully to resolve this matter with Defendant,

After attempting to extort more money than the Defendant was willing to pay in the face of virtually no Actual Damages to Plaintiffs...

Courts routinely dismiss “mirror image” counterclaims where they merely restate issues already before the court as part of a plaintiff’s case.

This case is hardly routine, as I've explained above.

And as for the Misuse of Copyrights claim, it is clearly misuse to attempt to extend your copyright monopoly into new areas not granted by law. This does not seem to be addressed by the cases the RIAA cites as their "proof" that no such Misuse of Copyrights defense or claim exists.

In summary, 23 pages of all the usual RIAA B.S. Move along now, there's nothing to see here.

Ray, am I right that only a single counter-claim needs to survive in order to give the RIAA a severe case of heartburn — given that they actually had a heart, that is? That as long as a single counter-claim exists, it is impossible for them to dismiss without prejudice and run away like the bullies they are, and have done so many times before in these cases?

I also wonder if the RIAA's favorite Noerr-Pennington doctrine defense would survive a Defamation of Character counter-claim? That's what the RIAA does in its publicity campaign against filesharing. Even when you're not named by name, they attempt to tar your reputation by filing public documents accusing you of crimes you may have never committed, on evidence they know is incomplete at best.

Hoping that this post will be read by the Defense, and that it might spark some ideas for them in true rebuttal of the RIAA's questionable arguments presented here.

XK-E

Russell said...

I am not sure of the viability of the counter claims, but I agree that the non infringement counterclaim should be allowed to continue.

If they cannot prove infringement, the defendant wants vindication. If they can prove infringement, the counterclaim is moot. Therefore, there is no harm in allowing the counterclaim to stand.

As XK-E pointed out, the past practice of the RIAA is to drop the case before resolution of the matters in front of the court. I don't know the criteria for a judge to rule on this counterclaim but I would think that it would be routine to allow it to stand simply because it is the mirror image of the complaint.

And for all the cases before the various courts, there is only a few cases that have actually resulted in a ruling on any substantive matters.