Wednesday, March 28, 2007

In Warner v. Stubbs, RIAA Now Promises Not to Sue Ms. Stubbs Again, Asks Judge to Change Mind About Declaratory Judgment

In Warner v. Stubbs, where the RIAA previously was granted permission to dismiss its claim "without prejudice" (meaning it can sue again on the same claim), the RIAA has now changed its mind and stated that it now "covenants not to sue Ms. Stubbs", and is asking the Court to dismiss Ms. Stubbs's counterclaim for a declaratory judgment and attorneys fees.

RIAA Renewal Motion Containing Covenant Not to Sue and Asking for Dismissal of Counterclaims*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica
Punto Informatico (Italian)

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

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Alter_Fritz said...

Hm, normaly I would say due to my limited english that i did not understand what they want, but I fear, that it's really this time the case plaintiffs are the one with a problem in understanding.

What I understand is that defendant Stubbs want a Judge to say "you didn't do it", and now those plaintiffs in fear of coughing up money for prevailing party say "we still believe you did it, but we promise not to sue you even while we think you are a stinking copyrightinfringer and thats what we keep alleging also in this letter to the court; you did infringe exhibit B recordings"

Did I understand that correct?

Can this argument work? I mean, one party want to be "declared innocent" and the other just say we don't believe you are innocent but we promiss not to sue you again.

Wouldn't such a constellation (if granted by court) in effect mean ALSO that Stubbs is the prevailing party under coyprighlaw. If the plaintiffs concede that any infringement that might have occured was an allowed infringement granted by plaintiffs?

Ryan said...

Well the interesting language to me was that they won't sue for the recordings in exhibit B, which has nothing to do with any other possibilities, only the stuff they sued over previously. As for the rest, well this is such an obvious ploy to not get their evidence in a court of law I would expect the judge to be ready to beat his / her head against the wall. (Main reason I decided to not be a lawyer, I don't know how they can avoid concussions) :P

AMD FanBoi said...

Excuse me Mr. Plaintiff, but the contraversy betweeen is is that:

1: You sued me.
2: I had to hire a lawyer.
3: Lawyers don't work for free.
4: We prepared a full answer and counter-claim, and filed it before you dismissed the case in a way you can sue me again any time you wish.
5: This has cost me a lot of money and time.
6: Now you say, oh, sorry, my bad. Nevermind. And by the way, we don't have to compensate you for our big boo boo.
7: I call that Contraversy with a captital-C, and I want to be paid for all the grief you've caused me, as well as ensure that it can never happen again.

Michael Hoffman said...

Are they going to get away with this?

raybeckerman said...

alter_fritz, it's not you that's confused, it's the riaa lawyer... he doesn't know whether he's coming or going...

his position last week is totally inconsistent with his position this week.....

i think the judge is not going to be pleased....

CodeWarrior said...

After what I have been reading lately, it appears the RIAA has a bit of a problem. They were voted to be the worst company in America, and now, thanks to some innocent dfendants and great lawyers, they are losing right and left. Right on!

Unknown said...

I believe this is know as painting yourself into a corner.

Anonymous said...

There are more and more savvy lawyers getting involved, teaching people what they can do to fight these idiots. Judges themselves are becoming more disgruntled with the riaa's loosely knit arguments. Riaa's spiderweb of deceit is slowly unravelling. It's delicious to watch! Slurp Slurp Slurp....

AMD FanBoi said...

More thoughts after looking over this filing once more. It does have high entertainment value, although not as good as that letter from Fresno.

On page 1 Plaintiff's admit that they filed a voluntary dismissal moments after Defendant had filed an Answer and declaratory judgment counterclaim.

In their example on page 3 they discuss a case where Plaintiffs decided before Defendant filed her answer to dismiss their claims. How are these two the same?

Also, how bound is a court to previous decisions? Are judges just too lazy to research the item on their own if it can be said that some other judge has already handled this issue? What if the other judge was lazy too, incompetent, or just plain wrong? When does a judge say, yeah there was this other somewhat similar case, but there were wrong there and I'm ruling this way.

And where they claim that a covenant not to sue means the defendant doesn't need a declaratory judgment of non-infringement, both their examples are patent cases. Might copyright cases be different?

Additionally, they surely seem eager to limit their ability to not sue to only defendant actions before the suit was served, and only to Exhibit B sound recordings. If the could find a single sound recording not in Exhibit B, or an instance of what they believe to be copyright infringement one second after they claim the suit was served on the Defendant, well hey, they're wide-open to sue once more. I'd be very wary of such a tightly worded covenant. They may feel they already have a way around it.

Lastly, nothing here would prevent the original record companies, or anyone else they assigned the copyright to in the future, from suing at all. A clean, clear, declaration of non-infringement would make all those problems go away. So if the RIAA doesn't want to sue anyway, why not just let the declaration happen?

Anonymous said...

I believe that they are trying to prevent making case law. If a declaration that using P2P software to get music is not copyright infringement, then the RIAA has nothing to complain about, and they would be the ones facing a class action suit for malicious prosicution, and quite possibly, a Justice Department investigation into their practices for the last six years, up to and including violating a court order that prevents joinder on the sole grounds that it would reduce costs to the plantiff(as Mr. Beckerman so dutifly pointed out about a month ago).

Ryan said...

I would say that is very likely. The last thing they want is to have someone actually make a decision on any of this stuff. You'll notice their whole strategy seems to be to delay any thing they can and rack up the bills to get people to just give up and go away.

StephenH said...

This is pathetic. I think that the RIAA is doing this because they don't want any "not guilty" verdicts on their record, and are afraid that this judge could follow capitol v foster and award attorneys fees which could cost the RIAA more than they can recover. I feel that the RIAA is waking up to the potential of "not guilty verdicts".

Anonymous said...

I would rather have the court dismiss with prejudice and in writing from the court saying so than have an empty promise from the RIAA.

I wonder when all the judges find the RIAA in contempt of court.

Unknown said...

The Plaintiff has made one small but very critical error in the filing. Quote...."Because the Plaintiffs are providing the Defendant with a covenant not to sue, the Defendant can not meet her burden of showing reasonable apprehension of imminent suit for infringement." .....unquote..... whilst that may have been true immediatly post their withdrawal, it was not true prior and at the time of the Defendant's actions to defend the case. The Defendant, AT THE RELEVENT TIME, was under the apprehension of immediate suit against her and notwithstanding the Plaintiff's subsequent actions and withdrawal, was able 'to show reasonable apprehension'. Accordingly, the Plaintiff's application should and most likely will be dismissed with the added burden of additional costs to defend this additional application!! The Plaintiffs lawyers should be sacked!!

raybeckerman said...

David, don't tell the RIAA that. Their lawyers are doing a good job for the defendants.

raybeckerman said...

PS I just added some interesting commentary from Ars Technica and TechDirt on the new motion in Stubbs.

AMD FanBoi said...

Another thing to consider: If the RIAA ever handed off this lawsuit business to another entitiy, say, for example, a separate business that could go bankrupt safely if enough cases went against them without harming the RIAA, how far would this proffered covenant hold?

And to reply to David above who points out a crucial point, that was the EXACT DIFFERENCE in the case they cite (dismissed before answer and Counter-claim filed) and this one (dismissed AFTER Answer and Counter-claim filed). I hope all the relevant lawyers are following this thread.

Mark Brown said...


Again, (and again), thank you for your devotion and hard work

Yes, I think the judge is NOT going to like this either.

I hope that we can GET to the point where we can have a CLASS action lawsuit AGAINST the RIAA for malicious prosecution

But that's a far way away, in the future, I guess

Anonymous said...

Three words "nonmutual collateral estoppel."

Anonymous said...

Anonymous: "I wonder when all the judges find the RIAA in contempt of court."

I wonder that too. I've wondered it openly on groklaw:
"Thus, if the RIAA is refusing to divulge its methods of acquiring data,

"It should therefore come as no surprise that in the United States, more particularly in UMG v. Lindor, in Brooklyn federal court, the RIAA is trying to prevent disclosure of the "instructions", "parameters", and "processes" of MediaSentry's investigation."

my natural assumption is that the RIAA is attempting to gain legal acquiescence in the RIAA's public contempt of court."

There are some interesting and useful definitions of "contempt of court":

And the RIAA's behaviour fits precisely:
"The act of willfully embarrassing, hindering or obstructing a court in the administration of justice, eg, by a party to a proceeding under the court's authority who willfully disobeys its lawful orders."

I would also say that the RiAA's current policy of trying to walk away from people they haven't intimidated into paying their extortionate demands, is also contempt of court, since someone has been publicly slandered and defamed, and the process of justice would demand that if they are not in fact guilty, they be exonerated. Ergo, just walking away and expecting to get away without any penalties for publicly slandering and defaming someone, is hindering and obstructing the court in the administration of justice.

The RIAA - Let's grind their faces in their own faeces.

Unknown said...

On AMD fanboi's point... The EXACT DIFFERENCE in the case they cite (dismissed before answer and Counter-claim filed) and this one (dismissed AFTER Answer and Counter-claim filed). There would seem to be some mis-understanding by some sections of the judiciary. Each case should be judged on its own merits. The rule of thumb should be this. All costs incured by the Defendant prior to the Plaintiff withdrawing their case should be reimbursed by the Plaintiff since the defendant would not have incured such costs had the Plaintiff not instituted proceedings. Simple really.