Friday, July 28, 2006

Another Motion to Dismiss Complaint Denied in Texas, Again Because Court has "Incomplete Knowledge of Technology", in Fonovisa v. Alvarez

Yet another motion to dismiss a complaint has been denied in Texas, again with the judge saying that he has "incomplete understanding of the P2P technology at this stage" to decide whether or not "the mere presence of copyrighted sound recordings in Defendant's share file constitutes infringement."

This was in Fonovisa v. Alvarez in Abilene, Texas.

Decision and order denying motion to dismiss complaint*

Once again the judge has ruled that the defendant must go through the expense of pretrial discovery before he can have a sufficient "understanding" to decide the issues.

This is the same conclusion reached in Waco, Texas, in Warner v. Payne, and in Arizona in Interscope v. Duty.

*Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


CodeWarrior said...

Texas IS my turf, and it upsets the hell out of me the way this was handled. Judges normally, pursuant to the lawyers for both sides, have to rely on expert witnesses for both sides in matters in which they have no expertise, or not enough to decide.

Look, ALL originally created material is , according to US TITLE 17, copyrighted at the point of impact. Unless a party asserts a claim of infringement, where is the infringement? Unless a copyright notice appears on the material , how is one to KNOW there is a copyright owner to request authorization from?

raybeckerman said...

Well I'm a highly experienced litigation lawyer; have been a member of the bar for over 27 years, and worked as a law clerk for 4 1/2 years before that.

I've never heard of judges denying a motion to dismiss a complaint because they don't 'understand the technology'.

Now I've heard that line 3 times in the RIAA cases, Interscope v. Duty, Fonovisa v. Alvarez, and Warner v. Payne.