We have recently learned that in a Kansas City, Kansas, case, UMG v. Johnson, the defendant filed 5 counterclaims, including counterclaims for computer fraud and abuse, and for civil conspiracy including allegations of MediaSentry having engaged in the investigation business without a license.
The RIAA has moved to dismiss the counterclaims.
Amended Answer and Counterclaims
Plaintiffs' brief in support of motion to dismiss counterclaims
Defendant's brief in response to motion to dismiss counterclaims
Commentary & discussion:
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
7 comments:
Although Defendant’s declaratory judgment counterclaim does raise a number of the same issues that are asserted as corresponding affirmative Defenses in Defendant’s Amended Answer, this declaratory judgment counterclaim serves a critically important purpose in this case, and can avert misuse of judicial resources if and when its function arises. Defendant’s declaratory judgment counterclaim serves as protection for the Defendant against the plaintiff’s inevitable attempt to withdraw their claims in this case without prejudice. As the issues raised by Defendant are ready to be addressed by the Court, the Plaintiffs will be at risk of having an adverse ruling issued that may place their thousands of other cases at risk. Plaintiffs would like to have the option to terminate this case by voluntarily dismissing their claims against the Defendant under Rule 41(a)(2). If Defendant has no counterclaims pending at the time, Plaintiffs may be successful in terminating this case by obtaining from this Court a voluntary dismissal “without prejudice” under rule 41(a)(2).
This wonderfully summarizes the RIAA's attempt to keep all options open to themselves while giving none to the Defendant. This attempt to nail the RIAA to the courthouse wall and hold them in place until final judgment is rendered should not be denied. To do otherwise simply allows the RIAA to financially punish anyone they choose (since the court refuses to dismiss under Twombly as it well should have done) using the court system to run up ruinous legal fees against poor victims.
To this man, if the RIAA has the evidence they should be required to stand and deliver it in court. And if they don't have the evidence, they should both pay for all the costs they incurred in their unfounded and frivolous lawsuit, as well as be severely sanctioned to the point that they will never try this again.
This man does have to question, however, any claim under the Computer Fraud and Abuse Act. If the Defendant maintains that (s)he was not correctly identified, then it would seem logical that it wasn't his/her computer invaded and that there wouldn't be a claim there.
Of course the RIAA insists that it was exactly her computer which was invaded so of that was illegal, then they've already confessed to the crime.
{The Common Man Speaking}
This is a well written response outlining the RIAA's past conduct, and why counterclaims are required to ensure the RIAA is not allowed to cut-and-run before judgment. Hopefully the Judge will read some of their past cases to learn the RIAA's true colors.
If they get their way on the Counterclaims and do cut-and-run later, maybe the declaratory judgment can be re-filed by the defendant, since clearly there still is a risk the defendant can be re-sued at any time. Refiling on their own would prevent the claim from being dismissed before judgment, as in such a refiled action, the current Defendant would be the Plaintiff.
Albert
I feel that the RIAA needs to learn that IP address logs are not near as accurate as identifying people as a persons DNA. Next of all, I beleive that Mandy Johnson has a claim here as she was not up at the time alleged and did not even like the kind of music they alleged she downloaded. I feel that this case is identical to that of Atlantic v Andersen. I hope a judge will regonize this and dismiss her case with prejudice. I hope the judge sides with Atlantic v Boyer and UMG v Del Cid and does not dismiss the counterclaims here and allows Mandy Johnson to pursue them to their fullest extent.
I beleive that the claim of an unlicensed investigator should hold up. I beleive that there is a good chance with computer fraud and abuse because they are using the internet to extort money from innocent defendants using a privacy invasion technique. Its possible though that they could try to dismiss or settle with Mandy because this could be a case of adverse reaction to them.
This case is yet another where the defendent OFFERED A DISK IMAGE and the riaa rejected the possibility of error and their automated litigation system kicked in.
Robots attempting to practice law is a bad idea.
Rick
This case also smacks of mis-identification, or maybe someone elses use of her wireless access point.
The Defendant outlining her business as a stay at home Day Care Mom who listens to Country Music. The songs she is accused of offering for download sound to me like a list of some of the most extreme titles of Rap, something that a Country Music fan is bound to hate.
She even offered them a image of her hard drive for examination. Sounds exactly like the kind of person who they will be dismissing in the future for lack of evidence.
This is why the counterclaims are so important to stay in, so she can get her day in court on the charges the Plaintiffs have accused her of.
Unlike some of the other cases here where the Defendants may have done things with unclean hands, I think they are very unlikely to make anything stick here.
If this were to go to trial, this is what I see as highlights of the evidence presented:
1) Both Defense and Plaintiff experts admiting on the stand there is no evidence that the songs in question or a filesharing program were ever present on her computer.
2) Witness after witness testifing they know the Defendant for a long time and know that she has NEVER listened to anything but Country Music. Maybe even her babysitting customers also stating they heard nothing but Country Music when picking up/dropping off their kids.
With just those two things, I cannot see the Jury issuing anything but a NOT GUILTY verdict in this case...
Albert
watch this video, showing court's double standards
http://www.youtube.com/watch?v=fuymxOgMLnk
Albert said-
"Maybe even her babysitting customers also stating they heard nothing but Country Music when picking up/dropping off their kids."
Yeah but then they would go after her for listening to a radio in a placwe of bussiness without a licence. The wonderful gentle people they are.
db
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