In SONY BMG Music v. Cloud, a Pennsylvania case, the defendant has moved to dismiss the complaint for failure to state a claim.
Defendant's Brief in Support of Motion to Dismiss Complaint
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
Wednesday, October 29, 2008
Pennsylvania defendant moves to dismiss complaint in SONY BMG Music v. Cloud
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6 comments:
Are they really asking for $150k per incident? That's outrageous. That's so far beyond outrageous as to be obscene. What makes them think they can get away with asking for so much?
150,000:1 wonder if that ratio is unconstitutional.
Again a concise, strongly stated, compelling argument against the current recording industry boilerplate litigation strategy.
The judge in this case should take notice that as much as it may appear that the Plaintiffs may actually be being injured to some fraction of the amount that they scream of in pseudo pain, the law has yet to address this issue properly and the legal remedies Plaintiffs seek do not yet exist. And just because they don't yet exist is absolutely no reason to allow these Plaintiffs to misuse the judicial system as an ally and hammer in extra-judicially punishing those that they alone deem guilty of sin. This case had to be filed to keep up the threat that if you don't pay our Settlement Center we will take you to court (no one would pay otherwise), but that doesn't make this case valid, and especially these groundless cases should never be allowed to continue over a long period of time in fishing expeditions and harassment of Defendants to make the RIAA's point of punishment through the legal system. Legal punishment doesn't start when you're found guilty, it starts when the case is filed, which is something many judges don't seem to give enough weight to.
To this common sense man, the making available argument is complete garbage. By that logic if this man leaves a CD on a table in my front yard and somebody comes along and copies it and puts it back afterwards this man is liable for up to $150,000.00 in copyright infringement damages for making that CD available. Or possibly times 10 for the number of individual tracks infringed = $1,500,000.00 for that single CD. We all know that this isn't right at all.
Also any library lending music CDs is guilty of making available since somebody may have copied one of them at some point – even though there is no evidence of it ever actually happening – making libraries infringers on a massive scale. We know that this isn't right at all either.
There is no Making Available cause of action, and to "infer" that if it could be done then it has been done is guesswork, not evidence. When our courts start relying on guesswork in place of evidence we're all in real big trouble. After all, should this man "infer" that if a person has a car, a gun, and a mask, that's all that's necessary to convict them for robbing the bank down the street – which may not have even been robbed?
Regarding an earlier topic that these should be criminal cases rather than civil ones, this man hopes that this will turn out to be the case. Why? Because criminal cases require a higher standard of proof. Inference and guesswork are far less likely to be allowed under those circumstances.
Although this is not Ray's case, this man wonders why the RIAA hasn't yet attempted to buy Ray's silence on these cases since this blog is the only continuous and ongoing source of information dedicated solely to this subject. While other sources also report on these developments, those reports are scattered throughout all the rest of the subjects they cover and would require searching out to focus only on this matter and truly appreciate the scope of these issues. Also those other sources don't tend to cross-reference each other with additional links to off-site related stories. As such this becomes the best origination point for all this information.
{The Common Man Speaking}
Would the "making available" argument apply to libraries from which peaople can borrow CDs?
-Nate
Nate: I don't see how the making available argument would apply to libraries. They have a physical object that people borrow and return. No object is being copied...
One might ask, "What if the people borrowed it and copied it at home?" But that's not the library's problem.
-dp
Failure to state a claim has never been found suffcient grounds to dismiss a case and I don't expect it to work now.
At this stage the idea that there is a possible claim in the compliant someehere seems to be enough to let the case proceed.
sebastion,
The RIAA has the law behind them in the statutory limit of $150K.
Until the law is declared unconstitutional, they are allowed to threaten with the full force of the law. Standard tactics in any case.
And if I understand the process, to have standing to declare the law unconstitutional, you have to have standing. Basically, you have to lose the case and appeal to have a chance to have this issue resolved.
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