Recording Industry vs. The People

Wednesday, June 11, 2008

RIAA dismisses Warner v. Cassin, "making available" case

The RIAA has voluntarily dismissed Warner v. Cassin, the White Plains, New York, case in which a motion to dismiss the complaint has been pending since July, 2007.

Substantial briefing had taken place in the case over the "making available" issue, and further rulings were brought to the court's attention on the subject from such cases as Atlantic v. Brennan, Interscope v. Rodriguez, Elektra v. Barker, Arista v. Does 1-21, Atlantic v. Howell, and Capitol v. Thomas.

The notice states that the dismissal is "without prejudice".

However, Fed. R. Civ. P. 41 (B) states "if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." It is believed that the plaintiffs learned of the defendant's identity through a prior, "John Doe", proceeding, which it also voluntarily dismissed, so that the dismissal in this case "operates as an adjudication on the merits".

Although the notice was submitted on May 27th, signed by the Judge on June 4th, and entered by the Clerk on June 5th, we just learned of it today, June 11th.

Notice of dismissal, so ordered June 4, 2008*

* Document published online at Internet Law & Regulation

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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

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posted by Ray Beckerman @ 6/11/2008 11:36:00 AM

19 Comments:

Implying then, on this (sued twice) basis as well as the previous "Threw in the towel" arguments two posts down, that Ray may actually get PAID for this case!

Yea!

By Rick Boatright, at June 11, 2008 11:57:00 AM EDT

I hope there's motions to recover attorney's fees for Cassin. Especially considering the RIAA's track record on cases it was not absolutely winning.

Q

By Anonymous, at June 11, 2008 11:59:00 AM EDT

So even though it says that each side will bear its own costs, the defendant may (should) get her attorney fees from the RIAA?

By bbsux, at June 11, 2008 12:03:00 PM EDT

I'm all in favour of kicking certain men when they are down.

By Jadeic, at June 11, 2008 12:31:00 PM EDT

The Notice of Dismissal was "pursuant to F.R.Civ. P. 41(a)(1)(i), which permits dismissal before service of an answer or motion for summary judgment, whichever first occurs." Your motion to dismiss counts as a motion for summary judgment, so the Court erred in signing this dismissal under 41(a)(1). Under 41(a)(2), the court can order dismissal anytime but upon terms the court deems proper (no counterclaims were made), and such dismissal would be without prejudice unless the court orders otherwise. The court should have said it was granting plaintiffs' request for dismissal under 41(a)(2).

By Fan of this blog, at June 11, 2008 1:39:00 PM EDT

Ray wrote:
"Although the notice was submitted on May 27th, signed by the Judge on June 4th, and entered by the Clerk on June 5th, we just learned of it today, June 11th."

Huh?
If I remember correctly cited person is the counsel for defendant Cassin.
So does this mean that RIAA did this move without prior talking about it with defendant?

Of course we don't know if RIAA did not payed defendant and counsel a nice sum ranging somewhere in the range of the 2 other "RIAA needed to pay"-decissions, and jsut have an agreement about confidentiallity and that the public record should reflect it this was as it did now,but as I understand the motion and Ray's comment it is more likely they did this "Towel throwing, Bully cut it and run"-thingy again.

Can defendant say "No way Mr Plaintiff and Judge Robinson, I don't accept your order, show me da money or reinstate the case! I don't let those misrepresenting and criminals hiring guys off the hook so easy!"?

By Alter_Fritz, at June 11, 2008 1:59:00 PM EDT

While one would expect Joan Cassin to now be the prevailing party, and if the statute of limitations has run out then she cannot be sued again for this same issue meaning that there has been a material alteration of the relationship between her and the plaintiffs. The notice of voluntary dismissal, however, specifies each party to bear its own fees and costs and is listed as "So ordered" by the judge. While that is obviously the RIAA's view of the world, does this affect Ms. Cassin's ability to now claim her attorney and other reasonable fees under the Copyright Act?

XxX

By Anonymous, at June 11, 2008 2:07:00 PM EDT

How many times is the court going to let these plaintiffs push the "Reset" button?

This one might be worth fussing over if you can find the Doe case.

By Matt Fitzpatrick, at June 11, 2008 5:54:00 PM EDT

The RIAA was required to serve a copy on us. They say that they served a copy by mail on May 27th. I have never received a copy.

If Ms. Cassin chooses to do so, she could bring a winnable motion for attorneys fees. She has not yet decided whether or not she will make such a motion.

By Ray Beckerman, at June 11, 2008 7:32:00 PM EDT

I could understand if she is just reliefed that it is "over" and if she would feel comfortable to just put all this stress behind her.
Non the less, I would like to take the liberty to ask her and encourage her from the bottom of my heart that she should do just that.

Dear Joan, you are not alone, other woman showed those criminal vultures and the lunatic dinosaurs in the lables that terrorize the society now already for so long what it means to attack brave american woman.
Please persue the matter further, don't let the bully "win"! Thank you.

By Alter_Fritz, at June 11, 2008 7:49:00 PM EDT

Dear Alter_Fritz,

It costs money to do things like that unless one is lucky enough to find a lawyer who can handle the case pro bono. Ms. Cassin was not that lucky, she only found me.

If you're independently wealthy and want to send her a nice big donation, then that would be nice.

By Ray Beckerman, at June 11, 2008 7:53:00 PM EDT

Sorry Ray, unfortunately I'm just a poor guy living off of social security ("Hartz IV" [+]) here.

But I would do it If I could!

[+] http://en.wikipedia.org/wiki/Hartz_concept

By Alter_Fritz, at June 11, 2008 8:07:00 PM EDT

This post has been removed by the author.

By Alter_Fritz, at June 11, 2008 8:03:00 PM EDT

This post has been removed by the author.

By Alter_Fritz, at June 11, 2008 8:06:00 PM EDT

Everyone else anticipated my arguments about attorney's fees. I hope Ray's got a Rule 68 offer on the file to serve as a basis for a "costs" motion.

@jadeic - "men" implies humanity, which implies souls. These are more like homonculi, or golems.

By Make M. Pay, at June 11, 2008 8:46:00 PM EDT

I'd kick in $500.00.

If you win, you can take the $500 (or $350 after the RIAA knocks it down), my portion of whatever you recover, and apply it to Marie Lindor's defense...

I'd love it for my donations to be able to do double duty here, or even more -- once you win for Lindor, pass it on again.

Regards,
derivative

By derivative, at June 11, 2008 10:33:00 PM EDT

Maybe you could figure out a fixed amount for the work for the costs, and use something like fundable.org.

Note, I don't know anything about these guys, but I think there are a few places that deal with the concept like this -- basically, people pledge whatever they are comfortable with, and if enough pledges come in, then the trigger is pulled and the money is actually donated.

Regards,
derivative

By derivative, at June 11, 2008 10:40:00 PM EDT

I retract my comment about the motion to dismiss counting as a motion for summary judgment so as to prevent plaintiffs from voluntarily dismissing this action without prejudice under Rule (a)(1)(i).

By fan of this blog, at June 12, 2008 9:07:00 AM EDT

new developments in this case!
http://recordingindustryvspeople.blogspot.com/2008/06/riaa-files-new-action-against-cassin.html

By Alter_Fritz, at June 12, 2008 8:00:00 PM EDT

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