In Elektra Entertainment Group v Doe, one of the cases targeting students at North Carolina State University, in Raleigh, North Carolina, the Magistrate Judge's decision denying defendant's motion to quash and motion to dismiss has been affirmed.
December 4, 2008, Decision affirming Magistrate Judge
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
Sunday, December 07, 2008
Magistrate Judge's Decision denying motion to dismiss and motion to quash in Elektra Entertainment Group v. Doe affirmed
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11 comments:
Again a judge totally buys into the "making available" argument as being equated to distribution because the Plaintiffs were only able to demonstrate a download to their own authorized agent. The fact that they are truly incapable of ever demonstrating any other download, as well as the issues of illegal investigation and imprecise identification, have totally escaped this judge who is charged with upholding the rule of law.
This judge's erroneous belief that the requirement of a simple statement of complaint at this stage is sufficient shows a true lacking of his own understanding of these cases. This man might have forgiven that lacking had this been the first such case filed, but a history of these cases stretching back years now demonstrating that defendants are wrongly identified by the methods in use here, and are then required to spend tens of thousands of dollars to fully defend themselves from charges that could never have been proven in the courtroom anyway, makes for this judge to be a very bad judge indeed.
At the very minimum the judge should have required THESE PLAINTIFFS to show how in THIS CASE that they could ever, in any possible manner, prove their charges. They can't, he didn't, and this case will be dismissed like all the others once the plaintiffs have again used this court and this judge to skirt privacy laws.
This judge should truly be ashamed of himself and the pall he casts on his own profession.
{The Common Man Speaking}
"Her" own understanding of these cases. Here in the 4th circuit, we have the unfortunate "Hotaling" decision to overcome. I really had some hope that Judge Flanagan would reach a different conclusion.
The court has became the harlot of the recording industry, and even when presented with OJ's bloody Glove, they see no wrong.
The judge writes: "Defendant ... objects to the M&R on the grounds that the complaint does not contain a sufficient allegation of infringement of either plaintiff's reproduction or distribution rights."
Whether infringement itself occurred is irrelevant. What's relevant is if Defendant infringed. Unless Plaintiff is accusing MediaSentry of direct infringment and thus Defendant of secondary liability, there is no real evidence. (Even then there are other big issues.)
-qwerty
I haven't seen this anywhere. Could someone file some motion (dismissal or otherwise) for failure to include MediaSentry as a defendant?
indispensable party. however, mediasentry probably doesnt meet the standard and even if they did i believe the judge would just bring the party into the case. probably couldnt get them dismissed but could try to get them added as a plaintiff. even if it was dismissed i would assume it would be dismissed without prejudice and both parties would just refile.
thats all i know. maybe someone else knows another way to achieve this.
-b
BarryS:
MediaSentry can't be a primary infringer when they're acting as the RIAA's agent. And if the only evidence claimed showing secondary liability relies on MediaSentry being the primary infringer, the evidence is of little value.
Alternately, if MediaSentry somehow could be a primary infringer, then unclean hands would spoil the RIAA's case.
But this doesn't matter if the judge doesn't make plaintiffs clarify what specific part of what specific law was violated by what specific action.
-qwerty
Another question. This man feels that the joined John Doe case is the moment of greatest weakness in the RIAA's case. They have virtually nothing at this time except a judge's ear at the ex parte hearing.
This man wonders if, given that a defendant intends to fight anyway (as opposed to paying the extortion), rather than waiting for the individual case to come along in more developed form, could the defendant(s) prevent this dismissal and force the RIAA to litigate from this beginning by filing answers and counterclaims immediately? They are, after all, the Does named in the suit which should give them full standing.
After all, these plaintiffs cannot demonstrate any actual infringing download(s), and music files simply on a computer hard drive (given that they can locate the computer at all) are not illegal. Plaintiffs clearly aren't intending to litigate at this juncture and perhaps they should be forced to do so. The joinder issue and the illegal (or at least unlicensed) MediaSentry issues could be fought here, rather than brushed under the rug as the fruit from the poisoned tree of further discovery is used instead in the only case to actually come to trial.
Clearly the RIAA would much rather go into court with a forensic examination of an image dump of the discovered harddrive rather than MediaSentry logs and trying to justify why that illegal investigation entitles them to more intrusive discovery.
{The Common Man Speaking}
The Common Man: As you say, it's a good idea. The problem is, it's hard for defendants to block dismissal without prejudice, since the only thing that happens in phase 1 is magically connecting IPs to names. On what grounds can you block dismissal?
If judges were to realize that phase 1 is brought without intent to pursue legal remedy, but only with intent to dismiss and sometimes blackmail, then it would be a different story. And some judges do realize this.
Mike D
Mike D.,
The Common Man INAL, however, his layman understanding of the law is that Plaintiffs can only dismiss their own claims. If the complaint has been answered and counterclaims filed, and issues of fact remain to be decided, then the case would still go to trial unless a settlement was reached first.
And if you are going to face a trial anyway, best to do so when your opponent is the least well prepared to face you. This man would believe that such a challenge to the RIAA plaintiffs at this early part of the case would most effectively require the RIAA to sever the does it its case itself, as well as have to Put Up or Shut Up. And when faced with that in the past, the RIAA plaintiffs have cut and run because they have no evidence sufficient to prevail despite what they may have said to the contrary.
{TCMS}
The Common Man Standing:
(IANAL too.) It seems what defendants need to is more than merely make a motion. Judges have been known to rule on defense motions and then allow the case to be dismissed without prejudice. The question is, what kind of motion or counterclaim is well-supported and can't be easily dismissed without prejudice? I'd love to see such a case unfold.
Moreover, pursuing such a case would clearly show that judge just how messed up joinder is, since all the other Does would be totally irrelevant to the moving Doe.
Mike D
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