Recording Industry vs The People: Declaratory judgment counterclaims dismissed in RIAA's case against Usenet.com, Arista Records v. Usenet.com, Inc.

Wednesday, December 10, 2008

Declaratory judgment counterclaims dismissed in RIAA's case against Usenet.com, Arista Records v. Usenet.com, Inc.

In Arista Records v. Usenet.com, Inc., the RIAA's case against web site Usenet.com, Inc., the Court has dismissed the defendant's counterclaims for declaratory judgment, on the ground that they were mere mirror images of the plaintiffs' complaint against defendant.

November 24, 2008, decision dismissing counterclaims

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

5 comments:

raybeckerman said...: Comment deleted. Off topic. Also misstates ruling.; December 10, 2008 at 5:13:00 PM EST
Anonymous said...: It looks to me unlike the typical John Doe Information farming suits(or the individual suits that follow if they cannot get you to agree to a settlement), this one might be reasonable to dismiss the duplicate claims.

In your typical "Regular" filesharing case reported here, the Plaintiffs appear to be willing to cut and run if there is any danger that they might lose a ruling. This is why they do not like counterclaims, because that interferes with their ability to drop cases at will without paying attorney fees to the other side.

In this case, the KEY issue is the DMCA which states service providers cannot be held accountable for content that they did not in fact post or moderate. This is a defense not found in our typical case here.

Since the content the RIAA complains of is posted by others, and Usenet.com simply provides a full, unmoderated feed of all newsgroups, how can Usenet.com be an infringer?

Since the Court is permitted to switch the labeling of Counterclaims and Affirmative Defenses, I see nothing in the dismissal that would prevent Usenet.com from raising the service provider exemption in the DMCA. As such, unless the RIAA wants to try to prove that the agents of Usenet.com are responsible for posting the song files they are complaining of, I can see no way that the service provider exemption would not apply. AOL has already received a ruling that they are not responsible for postings they did not post or moderate.

I say why should the RIAA be able to attack Usenet and Usenet.com, which is a network of computers totally under machine control, that automatically store and forwards without any human moderation in the ALT groups where im sure the postings they complain of are posted. Also, unlike the big 8, new ALT groups can be created by ANYONE. This has the effect of preventing Usenet from being able to ban certain named groups, because the posters would simply create a new similar name and purpose group to replace it.

I say, make them go after the original posters only, as they are the ONLY responsible party. Of course, logging on Usenet servers around the world I would bet are likely even more sparse than ISP IP logs, so good luck trying to identify the original poster. If they inserted a couple of extra fake items in the path header, or if the first host shown resolves to a non-us IP address (forged or real), good luck trying to get other nations to listen to a US Court.

Albert; December 10, 2008 at 10:54:00 PM EST
Anonymous said...: I would have expected Defendant to make a motion for summary judgment in this case ... AFAIK the facts are on Defendant's side.

XYZZY; December 11, 2008 at 4:02:00 AM EST
Not Telling said...: You are not responsible for infringing material posted by your users.

If you are a service provider then your service must be capable of significant non-infringing use. Undeniably, newsgroups have significant non-infringing uses but the RIAA is arguing here that over 99% of the UseNET traffic is from people downloading copyrighted material.

But in MGM vs Grokster, the Supreme Court held that one who operates a service while promoting its use to infringe copyrights is liable for the underlying acts of infringement.

The current UseNET website doesn't make any mention of downloading MP3s, movies, games or any other copyrighted material. It does mention downloading, but anything that you access on the internet must be downloaded.

Having said that, the Complaint has screenshots of the previous UseNET website that talks about sharing MP3s, and how UseNET is better than peer-to-peer. So it is likely that they changed their website after this lawsuit was filed. See page 81 of the complaint.

I believe that under the MGM vs Grokster ruling, UseNET will liable.; December 13, 2008 at 4:04:00 AM EST
Anonymous said...: Not Telling: But sharing mp3s is often legal! Countless mp3s are public domain, liberally licensed, or otherwise safe for file sharing.

*yt*; December 13, 2008 at 9:23:00 AM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove