Tuesday, April 01, 2008

Motion to dismiss complaint, based upon Bell Atlantic v. Twombly, denied in Elektra v. Schwartz

In Elektra v. Schwartz, the defendant's motion to dismiss based on Bell Atlantic v. Twombly, has been denied by Judge Trager.

April 1, 2008, decision denying motion for judgment on pleadings*

* 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


Anonymous said...


Indeed it would be difficult, as a practical matter, for plaintiffs to allege the exact times at which Goldshteyn downloaded particular recordings.

Indeed it will be impossible for plaintiffs to ever know this information. Yet that's what the law requires: Precise information on when and how the alleged infringement occurred.

the Court was motivated, at least in part, by the concern that antitrust discovery can be particularly onerous

And what the RIAA puts defendants through isn't???

This next item is truly disgusting:

The complaint sets forth the acts allegedly constituting copyright infringement with sufficient specificity to put Schwartz on notice of the grounds for their claim.

Let's see here. They can't prove downloading (alleged infringing files may have arrived by other legal means, e.g. ripping from CDs), they can't prove uploading to any non authorized person, making available isn't in the copyright act, the only "evidence" they've presented is clearly illegally gathered, their experts aren't, and this judge says, "Hey, they've got a reasonable case, so get out your wallets and start spending."

Never have I had such a low regard for the legal system as I now have, having seen judge after judge cave into the RIAA's specious arguments, illegal behavior, and outright lies!


Alter_Fritz said...

I have a problem to follow Honourable Trager's reasoning here:
"By contrast, the complaint in this case names the copyrighted recordings that were allegedly infringed and describes the manner in which they were infringed. Indeed, if these allegations in the complaint are proven true, under no circumstances will Schwartz not have infringed plaintiffs' copyrights."

"describes the manner" -> defendant did this and/or did that; a very specific description of the manner of alleged infringement, Totally different then the descriptions of the manner in the Twombly case of course!

"if these allegations[...] are proven true" -> which one the and or only the or one? Does he wanted to say that it doesn't matter and that he believes if its only the "or part" which would be making available that he already concluded that that's something which is a violation of copyrightlaw alone which gives rise to liability without having "illegal copies" in a folder at all (ripped ones from own CDs for example (or are those illegal now after all?!)

"under no circumstances will Schwartz not have infringed plaintiffs' copyrights." -> How so? What about this circumstance:

Q: You installed kazza on your computer?
A: Yes, because I could not figure out how to play my own CDs in Windows Media Player and I was told that I could play them with that program you asked me about

Q: You downloaded songs from other users of that network?
A: No, I only had listen to songs I copied from my own CDs onto the harddrive and I was under the impression that such a use of my property is covered under fair use of the CDs.

Q: But you were aware that by doing this you offered all your own songs for the world to grab from you for free! You made them available, didn't you?!
A: No, I was not aware about that and councel for plaintiffs let me point to the statements of the RIAA on behalf of your clients before that hearing a while ago where the RIAA complained that users of Kazza are mostly not aware that they make available songs and/or their whole harddrive content to the world because of a confusing user interface of the programm. I had NEVER EVER the intention to make anything available and give away digital copies where I have no rights to do so in, I'm not a pirat, I'm an upright lawabiding citizen! I feel offended by your allegations.

Q: Miss Swartz don't make a fuss on the stand: copyright infringement is a strict liability tort, the court does not care what your intentions were! We have proof you made those songs available so you are guilty! [ponders with his fist on the table]
A: [first tears in her eyes but strong-willed] But I did not know, most people say "making available" is not an exclusive right of your clients!

Q: We also have proof you distributed those songs" Here exhibit x the songs you distributed to our investigators!
A: but that's not copyrightinfringement. First they were expressly authorised by plaintiffs to recieve those songs and secondly I did not uplaod any of my fair use copies of my own CDs to anybody else! My technology expert told me that Media Sentry was the only one ever able to get any of the songs due to the fact that they use special software with which only they could "see" the files on my Harddrive. No member of the public could see MY own files and never did get anything from me so!

So Judge Trager what now?
No prove of giving copies to the public, no download of illegal copies from others. Only the she made available to some Plaintiffs authorized guys with software that could reach places you and I never ever could and those guys initiated comands to Mrs Swartz harddrive that gave out the copies to them without her intention to do so, her approval or even her knowledge!

Still no circumstances where there was no infringements of plaintiffs rights by Mrs. Swartz?!

Just because it is these days common public knowledge that p2p software is not insignificantly used to infringe copyrights, that fact does not make HER guilty automaticly. If your Honour came already to the conclusions that no matter what happened she is liable before discovery had even started I guess Its fair to accuse you of being biased already pro plaintiffs and their making available argument.

So could you please explain your statement by making clear which specific allegations from plaintiffs would that be and why she is because of them already "guilty" of copyright infringement in your honours opinion even before discovery had even begun? Such a clarification on your part might help to obliterate the impression that your Honor is biased towards the palintiffs in all those "RIAA vs. People"- cases your Honor expressly wished to rule about yourself with Judge Levy instead of have all those cases randomly assigned to other judges too.
Thank you your Honourable Judge Trager.

Jadeic said...

There is a certain grim predictability to Judge Trager's pronouncements.

So.. while looking for an apposite quote to illustrate this point I instead came across this gem from Carly Fiorina.

“In bullfighting there is a term called querencia. The querencia is the spot in the ring to which the bull returns. Each bull has a different querencia, but as the bullfight continues, and the animal becomes more threatened, it returns more and more often to his spot.

As he returns to his querencia, he becomes more predictable. And so, in the end, the matador is able to kill the bull because instead of trying something new, the bull returns to what is familiar. His comfort zone.”

Does that remind you of any organisation already on its knees?