Tuesday, January 20, 2009

The last man sued? In Atlantic Recording v. Williams, one of the cases filed by RIAA on December 15th, defendant fights back

You may recall that, after the RIAA announced on December 18th that it was stopping its lawsuit campaign, and hadn't filed any new lawsuits for months, we pointed out that this was a falsehood, and identified dozens of cases filed within a week or so of the announcement, some as late as December 15th.

We have now learned that one of the people sued on December 15th has retained counsel and made a motion to dismiss the complaint, in a Pittsburgh, Pennsylvania, case Atlantic Recording v. Williams.

The defendant, Jerome Williams, is represented by Elizabeth A. Farina of the well regarded Pittsburgh litigation firm Swensen Perer & Kontos.

Defendant's Memorandum of Law in Support of Motion to Dismiss Complaint

Commentary & discussion:


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


Anonymous said...

Plaintiffs have no proof that this defendant ever performed the actions alleged. Only that his name was attached to an ISP account that they allege to have identified.

Plaintiffs have no proof that any infringing copies were ever downloaded to anyone other than their own paid investigators.

Plaintiffs offer no proof of either continuous or ongoing infringement, and in fact no such proof is possible given the inability to identify the computer performing the infringing actions.

Plaintiffs are unable to identify the exact computer that performed the alleged infringing actions from the information gathered remotely. Even with direct examination it is impossible to identify the exact computer that performed the actions detected since many computers may have the same files, P2P filesharing software, and even the same MAC address. As such even ownership of the infringing computer – let alone actual use of it – is impossible to determine. At this time plaintiffs have NO computer located.

Plaintiff's investigation methods are unlicensed and untested at best, illegal at worst.

Plaintiff's legal theories as to "making available" and that if their paid agents acting as investigators were able to download files or fragments of files that millions of other Internet users "must" have also downloaded them are sheer speculation at best, outright lies at worst.

Plaintiffs actual damages from filesharing are pure fabrication in the minds of the plaintiffs in an unfounded attempt to blame their sales losses on factors other than themselves.

Plaintiffs have witnessed NO act of actual infringement. Nor can they claim any ability to actually gather evidence proving such acts from any computer owned or controlled by the defendant because it is a known fact that the P2P program(s) in question does (do) not create any logs of its activity.

Plaintiffs may not even be the legal copyright holders.

Because plaintiffs are unable to allege any instance of downloading or distribution they are deceitfully attempting to make it impossible to defend this case because they provide no specific allegations to disprove.

This is not even a real case since they never say that anything illegally actually happened – only that it might have.

Exhibit A only lists file NAMES, not file CONTENTS. Any file can be named anything possible within the character set allowed for naming. File NAMES prove NOTHING. Hence Exhibit A is absolutely worthless.

To this man plaintiffs have no case and are only using the law to harass citizens chosen at random using the court system as their blunt instrument of choice since plaintiffs suffer no financial harm in these proceedings. This case should be dismissed immediately with prejudice – especially since it is the second dismissal of a case against this defendant, the first one being filed and dismissed as a ruse to fraudulently obtain a subpoena against the defendant's ISP. That case was dismissed because it was so flawed with its joinder of unrelated Doe defendants and ex parte straw man allegations that it had to be dismissed since it would have collapsed otherwise had it not been conducted in secret.

{The Common Man Speaking}

Alter_Fritz said...

Oh what a beautiful thing we have here!
We have it all (all the stuff that had been debunked and/or exposed as being technical nonsense and/or a plain lie by plaintiffs and the acting counsel (this time some Geoffrey something guy)!
We have:
* Individuals that have IP addresses (there was unfortunately a dark time in germany when individuals had numbers, but since then and hopefully never ever again have individuals numbers; not tattooed nor otherwise like in IP address numbers).
* The plain lie that plaintiffs identified an individual.
* The unproven not with presented evidence backed up claim of continues use.
* The worn out "and/or" argument of course is also there!
* Oh, In count 19 we even have the nonsense which -if a judge should accept it- requires a Coleridgian "suspension of disbelief" that the harm is irreparable, especially when monetary damages can cure any alleged violation. [Thanks to Judge Lorenzo F. Garcia in Capitol Records, Inc. v. Does, 2007 for that observation/slogan!]

Someone should have told Geoffrey L. Beau[ty)champ (*SCNR*) that the Beauty of this Boilerplate is long gone, that he should have asked RIAA-"you answer my questions, I'm not answering yours"-Eve for a better one. With that shitty complaint by him he is clearly no "Champ" but just another minion loser associated with those "best-known and most well-respected record companies in the United States and the world" Vivendi Universal (France), Sony BMG (Japan and Germany), EMI (Britain), and Warner Music (US, but controlled by a Canadian)