In Elektra v. Licata, a Cincinnati, Ohio, case, the defendant's motion to dismiss complaint for failure to state a claim is now fully briefed, with the RIAA having filed opposition papers, and the defendant having filed his reply papers.
Plaintiffs' memorandum in opposition to motion to dismiss*
Defendant's reply memorandum in support of motion to dismiss*
* Document published online at Internet Law & Regulation
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5 comments:
Defense makes a compelling case that the Plaintiffs have no evidence, and hence no case. And that under the new standards for pleading you actually have to have "the beef" inside that big bun. And this is even without addressing the legality of the "evidence" they claim to have gathered.
I'm sure that the rabid RIAA response will be, "We just need to conduct more discovery, Your Honor! Let us dig long enough and we'll certainly uncover something!"
One point worth underscoring:
Just as origination of the telephone call from a particular telephone does not establish the identity of the caller; mere use of an Internet address does not establish the identity of the person at the keyboard.
The origination of the telephone call from a particular telephone doesn't even establish the telephone extension, out of many possible, that placed that call on that line assigned to that number, let alone the person who might have used it.
And then the RIAA's request (demand) to take discovery against other members of the Defendant's household under the color of this suit is outrageous, and admits that they really don't know who, if anyone in this household itself, ever committed the infringement in question.
By the RIAA's logic, if they took discovery against everyone in the household and still didn't find evidence of the infringer, would they then be allowed to take discovery against everyone who visited the household during 2005. After all, copyrights were infringed, and somebody had to be doing it. And how about acquaintances of those people? How far can the RIAA spread their driftnet and compel discovery – with even less evidence than they have against the current Defendant – against non-party individuals. This is truly a campaign of harassment that can only be carried out due to the massively deep pockets of the RIAA terrorists.
Btw, if the Fifth Amendment applies in these cases, then why isn't everybody successfully taking it? A claim of Fifth Amendment privilege can't be used as an admission of guilt, and saying nothing is always better than saying something when lawyers are involved.
Claiming that the Defendant is responsible for the use of the IP address assigned to him by any other person is like claiming that you, the telephone subscriber, is responsible because someone else was able to use your telephone to phone in a bomb threat. I don't believe that the courts will hold the telephone subscriber liable for the fact that he was unable to prevent every possible illegal use of his telephone every second of every day that he had it. An ISP account is the very same thing in this regard.
In terrorem is sure the new word of the day in these cases to describe Plaintiff's behavior.
-DM
AOL no doubt just provided the account holders name.
I wonder if they also provided the screen name used during the time in question? Also, is this a dial-up IP address? Whose name is on the telephone account? Is that person then responsible? If it's dial-up access, it could have been used by anybody dialing into that modem bank. Did AOL provide the telephone number of the line used to access the modem bank? While all of this information is likely available, it doesn't appear to be known - at least it's not made known by the RIAA's response.
Even if it does eventually point to the residence, it doesn't identify an individual. If it points anywhere other than the defendant, it's good evidence to get him off.
-xox
XOX,
If it's a dial-up line, the RIAA's case ought to be even weaker. It's hard to commit "infringement on a massive scale" down a tiny 56KB pipe. To really infringe properly requires a T3 at least.
-DM
about the only point they didn't hit was the "unlicensed investigator" one.
And I suppose that failing here, they can find a way to insert that on the next round.
By the RIAA's logic, if they took discovery against everyone in the household and still didn't find evidence of the infringer, would they then be allowed to take discovery against everyone who visited the household during 2005.
IIRC they've tried that. When they couldn't find the infringer in the family they demanded a list of every person to use that computer within the period the infringement took place.
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