Recording Industry vs The People: RIAA Moves to dismiss counterclaims in 2 Brooklyn cases, Maverick v. Chowdhury and Elektra v. Torres

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; January 12, 2008 at 6:16:00 PM EST
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; January 12, 2008 at 11:19:00 PM EST
Reluctant Raconteur 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.; January 13, 2008 at 2:04:00 PM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove