Wednesday, August 20, 2008

Judge Trager dismisses counterclaims and copyright misuse defense in Elektra v. Torres and Maverick v. Chowdhury

All of the counterclaims, and the copyright misuse defense, asserted by defendants in Elektra v. Torres and Maverick v. Chowdhury, both cases pending in Brooklyn against Queens defendants, have been dismissed by Judge David G. Trager.

August 19, 2008, Decision Dismissing Counterclaims and Defense

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 portable music player


Anonymous said...

And why is this not a surprise?

The logic dismissing the counter claim for declaration of non-infringement is especially weak given the Plaintiff's penchant to dismiss cases WITHOUT prejudice, meaning that Defendants do face the threat of future litigation. At minimum an intelligent, fair, and logical judge wouldn't dismiss this counterclaim as a mirror especially given that the case he cites to justify it is where the plaintiff consented to a dismissal on the merits. The RIAA doesn't dismiss cases in this manner if they can possibly avoid it. At the minimum an intelligent, fair, and logical judge wouldn't dismiss this counterclaim at all until the case was actually dismissed on the merits.

Judge Trager so very conveniently ignores that fact when he says: It can be gleaned from Leach and Larson that, in an infringement action, a counterclaim seeking a declaration of noninfringement will be viable only when it presents an independent case or controversy that would survive a dismissal of the plaintiff's infringement claim. Notice the sleight of hand on how the part about "on the merits" is now missing.

You know, even if the RIAA dismisses its case, plenty of controversy remains. Will they sue again? Will they use the information they extorted out during discovery against the former Defendant(s) in other ways? Will they sue family members with "evidence" they never had to start with before this case? And will they pay the tens of thousands of dollars spent to prove that their case was frivolous from the get-go? Yes, lots of controversy remains in the wake of the RIAA hurricane after a voluntary discontinuance.

And the fact that Judge Trager treated both cases in a single order is only more fuel to the fire that he believes these cases are identical and all should be heard by him and him alone.

He also appears to believe that new defenses against this novel application of copyright law should never see the light of a courtroom day and be properly tried. So much for having your day in court.

Just one outrageous decision after another. In a world of judges I would never want to find myself in Judge Trager's court – on either side of an issue.


Anonymous said...

"Because it has already been held that the plaintiffs' allegations in these cases establishes a plausible claim of copyright infringement..."

Even viewing plantiffs' claims in a favorable light, have plaintiffs at any time alleged specific instances of copyright infringement? As we know, "making available" isn't infringement. I briefly looked and didn't see anything, but maybe I missed it.

Also, I was reading the motion for a random judge and its dismissal (from 6 months ago), and I can't help but wonder.
(1) The judge equates "similar facts" with "the same facts". Many RIAA cases have similar facts, but to be related, they should have the same facts in common, and they don't.
(2) Many RIAA cases appear to involve similar facts when you are looking at the RIAA's claims. But when you look at defendants and their actions, invariably the facts are vastly different.