Recording Industry vs The People: Atlantic Recording v. Boyer, Florida case in which sufficiency of counterclaims had been upheld, has been settled

Friday, January 23, 2009

Atlantic Recording v. Boyer, Florida case in which sufficiency of counterclaims had been upheld, has been settled

We have just learned that Atlantic Recording v. Boyer, the Tampa, Florida, case in which the legal sufficiency of defendant's counterclaims for conspiracy to commit extortion, illegal investigations, and computer fraud, computer fraud and abuse, trespass, deceptive and unfair trade practices, declaratory judgment of noninfringement, and abuse of process had been upheld, was settled on December 1, 2008.

Notice of Settlement
December 1, 2008, order

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

11 comments:

Scott said...: Looks like the RIAA caved on this one. The good guys win! Woo hoo! :); January 23, 2009 at 4:43:00 PM EST
Anonymous said...: Again, it appears that these jerks have cut and run again when it looks like the tables are turning against them.

It could be possible that they did reach a mutual agreement, but I seriously doubt it with the RIAA's past history.

I wonder if the agreement will ever be made public or is it under an NDA.

As an aside to Copyrights and Campaigns (C&C), this type of settlement is exactly what we are wondering what happened. These jerks have the temerity to haul someones good name through the mud, ruin them financially, cause them no amount of stress and other hardship, but in the end the cut and run.

I'm sorry Ray, but if you want to cut out the last part concerning C&C, I understand, but he really needs to see what these slimeballs do to the average joe.; January 23, 2009 at 4:56:00 PM EST
raybeckerman said...: And you base that on what?; January 23, 2009 at 5:16:00 PM EST
Anonymous said...: This man questions if this is the second dismissal for this defendant, and as such the case could not be reopened regardless of whether it was in its without prejudice stage, or in its with prejudice stage?

This man also wonders whether this judge was ever informed that this was the second case against this defendant, the first case being the John Doe data-farming case which was dismissed as soon as the veil of privacy was breached?

This man infers without knowing the settlement details that it must have been on grounds favorable to the defendant, even if not an outright defeat for plaintiffs, due to the fact that defendant was winning in his motions to impose counterclaims on the plaintiffs when he accepted settlement. While not certain, it is certainly implied.

{The Common Man Speaking}; January 23, 2009 at 5:29:00 PM EST
raybeckerman said...: 1. I don't know what you guys are basing your speculation on.

2. I don't have the ability to edit your comments, just to accept them or reject them.; January 23, 2009 at 5:33:00 PM EST
Anonymous said...: Ok Ray. You got me on that (See January 23, 2009 4:56:00 PM EST above). It was more of a reactionary response and for that I apologize.

But I would still love to know what the settlement agreement is/will be about!; January 23, 2009 at 9:09:00 PM EST
Anonymous said...: "Atlantic Recording v. Boyer, Florida case in which sufficiency of counterclaims had been upheld, has been settled"

Bummer. I was kinda hoping this one would move forward.; January 24, 2009 at 12:16:00 AM EST
StephenH said...: I had wished this case would have gone to full out trial. I would have loved to see the RIAA have to present forensic evidence to oppose her counterclaims or even an injuction against the labels!; January 24, 2009 at 1:25:00 AM EST
Alter_Fritz said...: Well, it would have been more useful for society/other defendants if that case had proceed, but if she managed to make RIAA pay her at least 50k for her troubles. then I congratulate her non the less for that move to settle.

If of course her lawyer were not able to carve that money out of RIAA and she settled without such monetary relief just so that she made them go away, she acted stupidly!; January 24, 2009 at 3:47:00 AM EST
raybeckerman said...: A_F....

Don't ever accuse any of the defendants in these cases of "acting stupidly". There is no right way to handle these horrendous situations.; January 24, 2009 at 3:29:00 PM EST
Anonymous said...: A_F: It's easy for us to say Defendant should have pushed on, just to further the state of precedent in these cases, but that's often not a good thing for Defendant to do. "Sticking it to the RIAA" is not a convincing argument against settling.

John Smith; January 24, 2009 at 9:40:00 PM 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