Thursday, January 08, 2009

RIAA voluntarily dismisses Atlantic Recording v. Brennan

After having both its motions for default judgment denied, in Atlantic Recording v. Brennan, the RIAA has filed a notice of voluntary dismissal.

Although the notice states it is "without prejudice", under the federal rules a second voluntary dismissal operates as an adjudication on the merits.

This would constitute the second voluntary dismissal, the first being in the "John Doe" case in which it obtained the defendant's name and address.

Atlantic v. Brennan was the first case, of which we are aware, in which a court explicitly rejected the RIAA's "making available" theory. That decision, handed down February 13, 2008, is reported at 534 F. Supp.2d 278. It preceded the decisions in Elektra v. Barker, London-Sire v. Does 1-4, Atlantic v. Howell, and Capitol v. Thomas.

Notice of Dismissal

Commentary & discussion:

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8 comments:

bbsux said...

Ray, so what is the procedure now?

Do they file for fees -- I know that the notice says each party to bear its own costs -- but thats just standard boilerplate, right?

Hasn't another case said that the original doe case didn't count towards the 2 dismissal rule?

Ray Beckerman said...

The Federal Rules say that a second voluntary dismissal operates as an adjudication on the merits.

Ray Beckerman said...

Yes there was an adverse decision on that issue in Interscope v. Kimmel in Binghamton. However, the judge's 2-sentence order did not give us his reasoning. I think the judge was wrong. The Federal Rules control.

Alter_Fritz said...

Ray, help me refresh my memory please.
Wasn't this here the case where defendant did not even appear in the slightest?
(was this here the "sewer service"-case where the server nailed the papers on a door of a homeless guy or wasn't it?)

And it was the Judge that did all the normaly required procedural thingies on her own sua sponte without that defendant had any say.

So was there in the meantime any interaction of defendant with court or plaintiffs so that we can give the Plaintiffs the benefit of doubt that their withdrawal "each party pays itself" was not only some one sided decision by them alone?

I ask because i find it strange that Evil4 can throw in the towel on their own saying without that defendant might have had the opportunity to say no to the throw.
(OK, it might be in the interest of defendant that the case is gone, but non the less, Where I to be sued and might not even know that i were, I would not want Plaintiffs to be able to "run away" and I might face some monetary demands some times later from the judiciary or some private guys that want money for some "services" on behalf of plaintiffs.

In german civil law we have the rule that "loser pays" the cost of the other party and not only its own, thats why I ask.

Anonymous said...

This is the RIAA's admission that without distorting copyright law beyond all reality, or an invasive and overreaching hard drive inspection, that they have no case.

Now make the RIAA pay.

{The Common Man Speaking}

Ray Beckerman said...

Yes this is the case where the defendant never showed up and the Judge on her own did the (a) reading and (b) research to throw the rascals out of court.

As near as I can tell, Mr. Brennan never came anywhere near the courthouse. Who knows if he was ever even served with a copy of the papers?

Ben said...

I'm afraid each side to bear its own costs will have exactly the same result here as RIAA to bear all costs since the defendant by not showing up didn't incur any costs.

Anonymous said...

Ben: I'm more interested to see if the judge notes the implications of the second dismissal. As for money itself, since defendant apparently didn't spend any on the case, there's no issue.

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