Tuesday, April 28, 2009

In SONY BMG Music v. Tenenbaum, defendant moves for rehearing en banc, & stay, plaintiffs oppose defendant's motion to amend answer

In SONY BMG Music Entertainment v. Tenenbaum, defendant has moved for rehearing en banc of the 1st Circuit's ruling on internet streaming of the April 30th oral argument, and requested a stay in the lower court, while the plaintiffs have filed 'supplemental authority' opposing defendant's motion for leave to amend his answer. One of the authorities cited by the plaintiffs was a decision in a pro se case, UMG Recordings v. Martino.

Defendant's notice of motion for rehearing en banc, and district court motion for stay
Plaintiffs' supplemental authority opposing defendant's motion for leave to amend answer
Exhibit B-Decision in UMG Recordings v. Martino




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:

Eric said...

When does the RIAA NOT oppose something.

Trav said...

Maybe the key to fighting them is to suggest something beneficial to them and wait for them to oppose it.

David Donahue said...

I'm shaking my head here. How can a pro se case be cited as a binding or contributing precedent? I did note that the pro se status didn't seem to be specifically called out in the opposition, so maybe they were hoping that the judge wouldn't notice.

The defendant in a pro se case is extremely likely to have missed something fundamental, especially in something as tricky as proving the applicability of the "sham lawsuit" exception of the Noerr-Pennington doctrine. They likely could have lost an argument that would normally have been won assuming that qualified council had been retained.

To get this exception you would have to prove the RIAA's case "objectively baseless" and unlikely to prevail. With a pro se defendant, even objectively baseless cases are likely to prevail. I'm not sure where that tangle leaves us, but that case definitely shouldn't be cited as precedent.

I also thought that it would be hard to successfully block the filing of additional arguments by either side. Sure, the arguments may be ignored by the judge, but usually they tend to let you try.

Am I right or did I misunderstand something here?

Anonymous said...

How can the RIAA claim that they would be likely to prevail when only one case has ever went to jury, and that was overturned by the Judge in the case?

Anonymous said...

How can the RIAA claim that they would be likely to prevail when only one case has ever went to jury, and that was overturned by the Judge in the case?