We have just learned of a case in Philadelphia, SONY BMG Music v. Cloud, where the defendant moved to dismiss the complaint or for a more definite statement, the Court denied the motion, and the defendant has moved for reconsideration, or for the certification of an interlocutory appeal.
August 22, 2008, decision denying motion to dismiss
Defendant's motion for reconsideration, memorandum of law
Defendant's motion for reconsideration, part 1 of exhibits
Defendant's motion for reconsideration, part 2 of exhibits
Keywords: lawyer 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
7 comments:
Almost all these courts seem determined to allow these cases to proceed despite a lack of a tryable case. The judges appear to bend over backwards to accommodate the well-heeled Plaintiffs despite the immense burden placed on poor Defendants. Especially as actual losses, provided that any actual losses even ever happened, are so small as to belong in Small Claims courts rather than the more serious venues.
It's a disgrace.
{The Common Man Speaking}
It looks here like, yet again, the RIAA is trying to pull a fast one and slip past any critical inspection the concept that Attempted Infringement is equated to Actual Infringement. The demand to know exactly what part of the Copyright Act the Defendant is being accused of violating is paramount here in its importance since once that's specified then the Defense can demand to know how that violation can actually be proved. (E.g. if claiming actual (big D) Distribution, what can inspection of a hard drive show to prove that Distribution occurred? Simple presence of music files proves nothing!)
I also note the relatively definitive contention that Defendant Denise Cloud is the actual infringer, which we know often falls apart after discovery is actually performed.
There was also a passing reference to "unlicensed investigator" that should be hammered home much more forcefully.
I noticed with pleasure how you, Ray, was referenced in this Motion for Reconsideration.
This judge should consider seriously before denying this clear and compelling motion for reconsideration.
And we're not even to the point yet of unconstitutionally outrageous, virtually putative, damages being sought.
Again, another case that shouldn't proceed another moment, nor cost the Defendant another cent to defend, because it's garbage that pollutes our very judicial system!
XxX
Is defendant not entitled to know when, how, by virtue of what actions, and, respectively, what part of what laws plaintiffs assert she infringed their copyrights? -dp
Apparently not.
You are under arrest, but we can't tell you why or for what.
You're being sued for thousands of dollars, but we're not going to tell you what exactly we think you did wrong, or under what statutes you are liable.
I thought part of the whole american justice system was the ability to face your accuser?
I thought part of the whole american justice system was the ability to face your accuser?
The defendants are facing their accusers in a court of law (well, sometimes they are, ex-parte proceedings notwithstanding.) The real problem is, the accusations don't make much sense. They're illogical, fallacious, and abusive of both the defendants and the courts.
The only thing I can figure out is that judges, by and large, must be impressed by Armani suits. Otherwise, I don't see why these people aren't booted out of the courtroom.
I would hope that Judges would follow the actual law, and hold them to that standard.
My understanding is the pleading must contain enough information to show enough evidence, that if believed would cover all the elements of copyright infringement. This is what the Defendant is in effect saying, the pleading does not contain enough information to show all the elements. I think the original denial was wrong for that reason.
Another thing I never quite understood is how they can allege continuing infringement, when all their evidence is only for a short time. I would think proof of ongoing infringement would have to be proof the same songs were in fact shared over at least a longer period of time, a month or more mimimum.
However, in the world of dynamic IP address assignment this type of proof is hard to come by, but it does not seem to stop them from pleading it anyway. Most download lists Ive seen only bridge at most 2 days, so how can they say it is continuing??
Albert
Albert,
The claim of "continuous and ongoing infringement" with no evidence supporting it, and no possible evidence that could support it (even the same files seen at different times might be two different computers), has appeared to serve two purposes for the RIAA:
1: It allows the RIAA to put an air of urgency into their case that they need to be granted expedited discovery immediately because the harm is ongoing and getting worse by the second.
2: It allows the RIAA to avoid any question of a two year statute of limitations on their most common claims, and other possible statute of limitations depending on whatever else they might claim in the future.
Yes, both of these are completely fraudulent on the RIAA lawyer's part, yet there appears to be no penalty for lying to the court in this regard so they continue to do it.
I would like that specific part of their case challenged, and when they have to back down on that contention, use it to show how unfounded all their other claims are as well. Haven't seen it happen yet and am left wondering why no defense attacks on that point. A demonstrably badly prepared case, or a pissed off judge, cannot work in the RIAA's favor.
XxX
Post a Comment