Monday, February 25, 2008

Default judgment denied in Atlantic v. Brennan, RIAA complaint insufficient, possible defenses of copyright misuse, excessive damages

In Atlantic v. Brennan, a New Haven, Connecticut, case, the Court has denied the RIAA's application for default judgment, rejecting the RIAA's "making available" theory.

The February 13, 2008, decision of District Judge Janet Bond Arterton holds, among other things, that the complaint is insufficient, both because

"“without actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”)"
and because the balance of the complaint fails to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), and would not survive a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), agreeing with Interscope v. Rodriguez, 2007 WL 2408484 (S. D. Cal. August 17, 2007).

Additionally, the Court held that the defendant had numerous other possible defenses:;
In other similar cases brought by these Plaintiffs and other record labels,
individual defendants have raised a host of colorable defenses; but due to the
varying procedural postures, the viability of these defenses has largely yet to be
conclusively determined. The defenses which have possible merit include: (1)
whether the amount of statutory damages available under the Copyright Act,
measured against the actual money damages suffered, is unconstitutionally
excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at *3(E.D.N.Y.2006) (finding the defense non-frivolous); Zomba Enters., Inc. v.
Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir.2007) (rejecting the defense as
to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory
Damages, 3 Geo. J.L. & Pub. Pol'y 601, 637 (2005); FN2 and (2) whether the
Plaintiffs and their recording industry peers, by bringing infringement suits like
this one, have engaged in anticompetitive behavior constituting copyright misuse,
see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to
dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v.
WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003) ("The doctrine of misuse prevents
copyright holders from leveraging their limited monopoly to allow them control of
areas outside the monopoly .") (quotation marks omitted).
February 13, 2008, Order and Decision denying application for default judgment* (534 F. Supp.2d 278)

[Ed. note. A big shout out to Matt Foster of Indiana Legal Services, Inc., for calling this decision to our attention. Thanks, Matt! -R.B.]

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Ars Technica
Slashdot
TechDirt
The Inquirer
IT Avisen (Norwegian)
Groklaw
Quinta's weblog (Italian)
Heise Online (German)
Shelly Palmer News Podcast on YouTube
ShellyPalmer.com
Stereophile
interval.cz (Czech)
The Chronicle Online
megalab.it (Italian)
Patry Copyright Blog



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






11 comments:

Alter_Fritz said...

Hm, it seems slowly but for sure we can start a tally sheet comparing how often Riaa-Rich and his lying collegues use the "hundrets of courts have..."- Bovine feces versus the times when a smart, intelligent, due justice applying judge tells them to "take a hike" if they want to defraud them.

That's a good sign after all!



Her name is Bond, Janet Bond! The judge with the license to give court- and the justice defrauding Plaintiffs like these a severe headache *SCNR* ;-)

--
A_F

Anonymous said...

the balance of the complaint fails to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), and would not survive a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6)

Is this a hint to the Defense?

XK-E

Anonymous said...

This judge has clearly researched the issue in depth regarding decisions and issues in other, similar, boilerplate cases filed by these Plaintiffs. As such, she has to be the RIAA's worst nightmare.

-DM

Anonymous said...

According to the ruling, on March 22, 2007, David Brennan was served. This was apparently the wrong person, since on July 27, 2007, the defendant was changed to Christopher David Brennan. Three days later the plaintiffs moved for default judgment. Is this another example of the RIAA suing the wrong person and then adding insult to injury by moving for default judgment only three days after suing Christopher Brennan?

JoeN

Alter_Fritz said...

"Is this another example of the RIAA suing the wrong person and then adding insult to injury by moving for default judgment only three days after suing Christopher Brennan?"

only "RIAA-Richard" knows that for sure, but I give it a 90% chance that this was the case here again.

deemery said...

Can someone explain the use of the term "colored/colorable" in the ruling, e.g.: "defendants have raised a host of colorable defenses"?

Thanks in advance.

dave

Josh said...

IANAL but http://www.sec.gov/rules/final/33-8185.htm seems like an authoritative source on the term "colorable defense".

Ray Beckerman said...

I rejected an anonymous post which gave an incorrect definition of what is meant by colorable.

Colorable basically means 'fairly arguable'.

Anonymous said...

Ray,

Thanks for the definition of colorable. While I'm not the person originally asking the question (or having my post rejected), I was unable to find it in the usually reliable Groklaw.com Law Library link.

I gather that colorable defense is different than cognizable defense.

XK-E

Ray Beckerman said...

Cognizable means it is based on a legally sufficient theory.

Colorable means that (a) the defense is cognizable + (b) there are some facts tending to support it.

Anonymous said...

Good to see someone finally calling out RIAA's tactics. My daughter got a letter from them in January, and it has preoccupied her since. After talking to UCONN it seems they will be more than willing to give her up when they get a subpoena. I let them know that if/when that happens they no longer will be getting that 30+K a year from me. So far we are just lying low, waiting to see what happens next. I told her to put it on the backburner, and focus on school. What burns me the most is how these people have basically ruined my daughters first year of college. I can barely afford tuition etc, so a lawyer for this BS is not even a remote option. Sad part about the whole thing is she did not even know that program was still running......she had not used it in well over a year....john