Thursday, September 08, 2005

About the RIAA's Request for a 'Second Bite at the Apple'

Reprinted from Digital Music News:


RIAA Asks for A Second Bite at the Apple in Elektra v. Santangelo

Asks for a second oral argument and a chance to serve a surreply

This is my first blog post on Digital Music News, and I am very excited to be a part of this dynamic pioneering group. Although I'm a lawyer by profession, I'll do my best not to be boring.

As regular readers of Digital Music News already know, my firm is representing Patricia Santangelo in the Elektra v. Santangelo case.

Ms. Santangelo appeared in court in May by herself, before hiring attorneys. After we were retained, we made a motion to dismiss the complaint for failure to allege any specific acts, dates, and times of unlawful copying, which is required in a copyright case. We made our motion, the RIAA served its opposition papers, and we served our reply papers, which is the normal sequence. (Copies of the May transcript, and of the motion, opposition, and reply papers, are catalogued at my blog Recording Industry vs the People)

On August 5th, the judge asked for and heard oral argument on the issues raised by the dismissal motion. I argued for the defendant. Timothy Congrove, of Shook Hardy & Bacon, a Kansas City, Missouri, firm best known for representing big tobacco companies in suits brought by lung cancer victims, argued the case for the RIAA. He literally 'phoned it in' -- i.e. he appeared by telephone.

The motion was fully briefed, and the last papers submitted to the court, on August 15th.

On August 22nd, in a very unusual move, the plaintiff's lawyers asked the judge for a second oral argument and permission to serve a surreply.

The surreply request is unusual because the normal rule is that the party bearing the affirmative burden of persuasion (in this instance Ms. Santangelo) gets to have the last word. The party making the motion bears the burden of persuading the court, and serves its motion papers. The opposing party serves its opposition papers. And then the movant gets the last word -- its reply papers.

I would say that asking for a second oral argument is unusual, because (a) in almost 31 years of working in litigation I've never heard of anyone doing it, and (b) the very asking for it is an admission that the first oral argument was lost.

One can only guess as to why plaintiff's lawyers are doing it. Apparently something happened after August 15th to convince the plaintiff's lawyers that (a) they are losing, and/or (b) the case is more important than they initially thought it was. Or perhaps they are doing it because they are hired guns and their client just ordered them to do it.

What do you think?

Reprinted from Digital Music News


Anonymous said...

What do I think? I think that if the RIAA loses this case, it's all over for them.

Everyone they file a claim against is with the same evidence. If that evidence doesn't end up surviving the court's scrutiny, then none of their cases will.

A precident in favor of Ms. San in this case will be devastating for the RIAA and they can't afford that.

It seems like they would be willing to employ unusual tactics if they even have a snowballs chance in hell of winning with them. Expect them to do anything they can to win this case.

Anonymous said...

If they lose this case is their any chance that former victims can strike back at the RIAA for essentially forcing them to make settlements? (We all realize that many people have settled simply because they couldn't afford the risk of losing and in many cases couldn't afford to hire an attorney for legal advice so they had to go by what the RIAA told them.)

I'm not so sure it will completely derail their lawsuit campaign, but it will significantly hamper it. They'd have to get full and proper evidence to file a suit and that would require many court motions just to get the necessary logs. (And they may not be able to convince any court to force an ISP to turn over their logs without more concrete evidence up front.)

I really hope it does spell the end for them though. The sooner they get over trying to prop their failed business model up by legal action the sooner we can end up with a new system that, with luck, will fairly compensate the actual artists and get rid of all the industry fatcats that abuse those same artists now.

raybeckerman said...

I think they have been bringing the cases without any evidence of any actual copyright infringement.

I think a dismissal by Judge McMahon will mean that they have to do a factual investigation first, and only sue people if they have some evidence that those people actually committed acts of copyright infringement.

Jonathan said...

In a civil trial, what would be fairly considered "evidence of actual copyright infringement" when it comes to online filesharing?

It seems to me that the RIAA could download a file themselves, then use that as evidence. But simply getting a list of file names, or (for example) an IP address from a bittorrent tracker, which might or might not indicate that any copyrighted material was exchanged, should be insufficient. Is that correct?

Anonymous said...

I'd say that if the riaa downloaded a file themselves, that would also be insufficient evidance since the riaa can legally copy the file they downloaded :p

In any case, i think someone should point out to them that none of their lawsuits are acctually legal... section 1008 of us copyright law... don't have the exact text but to me it reads something like 'no action may be take under this act for none commercial copying by a consumer'

That to me implies filesharing is legal, as its both non commercial and done by consumers.

Anonymous said...

"...I'd say that if the riaa downloaded a file themselves, that would also be insufficient evidance(sic) since the riaa can legally copy the file they downloaded :p"

Nope, It's not about copying, it's about distribution. Did the defendant have the requisite rights to distribute (i.e. the 'copy-right') the content? I would venture to guess no. This is assuming that they can PROVE when, where, etc.. the defendant violated the copyright.

As far as this motion, the Judge should toss it. I, however would file a motion pleading for the court to deny it, based on nobody ever having won an argument after Dad asked "Do I have to pull this car over?"

Anonymous said...

As far as this motion, the Judge should toss it. I, however would file a motion pleading for the court to deny it, based on nobody ever having won an argument after Dad asked "Do I have to pull this car over?"

I'm not sure what you mean by this. Do you mean that you'd oppose dismissal of the lawsuit? And I kind of missed the reference as to why...

Anonymous said...

Good thought on that "you can't prosecute people who do this without aims for profit" point. It was successfully used as a defense in a multi-multi-million dollar suit against a teenager about 5 years ago if I recall. Congress patched the loophole after that. I think the penalties are now either $10k or $100k per offense.