Wednesday, August 29, 2007

RIAA Moves to Strike "Copyright Misuse" Affirmative Defense in UMG v. Lindor

Although the RIAA has made several motions to dismiss charges of "copyright misuse" when they had been interposed as a counterclaim, it has now -- for what is believed to be the first time -- filed a motion to strike when "copyright misuse" was asserted solely as an affirmative defense, in UMG v. Lindor.

Although Ms. Lindor interposed no counterclaim, the RIAA's arguments are virtually identical to the arguments it made in attacking the counterclaims in four (4) other cases.

The defense asserted by Ms. Lindor, first raised by her in March, 2006, alleges:

8. The plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have.
9. As such, they are guilty of misuse of their copyrights.
Ms. Lindor's opposition papers are due September 18th, and the RIAA's reply papers are due October 2nd.

RIAA Motion to Strike 4th Affirmative Defense, Copyright Misuse*
RIAA Memorandum of Law in Support of Motion to Strike 4th Affirmative Defense, Copyright Misuse*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Keywords: digital copyright online 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


AMD FanBoi said...

I'm certain that the biggest slapdown the RIAA could receive, and the biggest risk they face, is actually losing their copyrights through misusing them. The way they've gotten current laws written (also un-Constitutional, in my opinion), they otherwise own these performances forever! No monetary penalty, even punitive damages for malicious prosecution, or jail time for RICO, would be as damaging as loss of copyright. As such, I expect them to go absolutely insane fighting this counterclaim.

It would seem to me that if Copyright Misuse has ever been found valid in a court (i.e. someone actually lost their copyrights), or ever litigated as a valid cause of action (i.e. another court has seriously considered the issue at trial), then such a cause of action exists, is valid, and should be decided on the merits. Of course, the RIAA never wants to let it get this far. In fact, I bet they'd drop the case under any terms that the Defense would allow to prevent this question from actually making it to trial, or judicial decision. And if they lost, they'll fight it as high as they possibly can.

I hardly see how the Plaintiff(s) could be prejudiced by its inclusion, especially considering their other tactics. Nor is it a waste of time or money on behalf of the courts to determine the validity of such a counterclaim. As far as Plaintiffs having to expend extra time, effort, and money, they seem to have unlimited amounts of all three of these.

Funny how the RIAA lawyers now object to "mere conclusory statements". Their completely unsupported by any facts at all contention of "ongoing continuous infringement" has to be the biggest conclusory statement in legal history!

And it seems to me that the RIAA is attempting to argue that because this defense has never been used before in exactly these circumstances, it's not valid to use now. That's like trying to prove a negative in the absence of any controlling legal authority. Every legal point has it's first use somewhere, and here's a great moment for this one. After all, never have lawsuits like this been filed before either, but that's all fine with the RIAA. Of course, they're just inviting an antitrust claim in their papers.

As for the relevant market affected: sales of digital music, doh! I bet a jury would understand this. The very lack of such a competitive market for many years after it was possible and reasonable to do should be sufficient to make the case to start discovery immediately.

Of course, the RIAA is trying to turn a Copyright Misuse claim into an Antitrust claim, since they can better fight the Antitrust claim.

As for the Defendant's injury, which the RIAA claims she must have suffered in order to prevail in this matter, THIS CURRENT LAWSUIT IS THE INJURY, you RIAA idiots!

This is cute. "[Plaintiffs] are doing no more than protecting their unquestionably valid copyrights." Hey, guess what? It's the validity of those copyrights that is the very issue here.

Is the RIAA trying to bring in a different standard under Twombly, than the one of "all facts viewed in the light most favorable to the moving party" one to determine if a claim is allowed to proceed. Not that it must be proven that discovery reasonably will reveal the necessary evidence?

It's interesting to research the situation in Europe at the time the US Constitution was written in regard to copyrights. You can see why the framers of the Constitution put in the phrase "secure for a limited time", which now the Supreme Court has let slip away from us. My opinion is that no copyright, once granted for a set period, should ever be allowed to be extended. It has already served its purpose of fostering the creative arts, and when extended has the direct opposite effect of keeping those created arts out of the public domain where they can be used to inspire and create new arts.

And Ray, I sure hope you can successfully attack the RIAA's Noerr-Pennington contentions. It's not impervious to all assault, given the publicity the RIAA attempts to generate from these cases, and how they cut and run rather than actually take any of them to a jury trial. Noerr-Pennington, for example, is not a defense against SLAAP countersuits in some states, nor does it protect those who file sham lawsuits.

Nice to know that maintaining a blog is not a legal activity by the RIAA, but enforcing boilerplate cash settlements without any evidence that they're even threatening the correct person is. And that you only defend these cases "presumably" to obtain fodder for your blog. That sounds like libel (printed lies) to me.

In conclusion, I see that the RIAA wants facts asserted, as opposed to conclusions and buzzwords (anyone remember who coined the term: Online Media Distribution System?). Funny how they have yet to adhere to this standard themselves.

jbrooks said...

Obviously it is very important the motion be defeated. Killing the motion and proceeding with discovery will likely be the death knell of the RIAA lawsuits. It is that important.

Interestingly, the motion to strike takes no exception that "The plaintiffs, who are competitors, are a cartel acting collusively in violation (snip ...) of public policy,... As such, can't it be said in the reply that that is undisputed? I found no mention of an argument in their motion against that what they are doing is against public policy.

It seems their motion is very weak at defending some of the specific evils they have committed in many of the suits. Where they are vulnerable, and perhaps the case can be made for the viability of the defense is in their efforts to expand their exclusive rights way beyond what the Copyright act provides. The fact that their litigation campaign, acting as a cartel, etc, etc, routinely asserts merely being an account holder makes one a primary infringer and that parents are automatically infringers because of the actions of their children/friends/guests/household employees/etc, first as direct infringers, then as vicarious infringers, all contrary to what the law is and what they know the law is, strongly demonstrates misuse.

I'd look at the EFF amicus brief for the Foster Fee motion. It seems there are excellent arguments there regarding the whole RIAA sue em all strategy from a misuse perspective. Would it not help to have a amici briefs from EFF and/or others on point for this motion?

Finally, the RIAA has admittedly sued individuals it knows are not guilty of infringment, a troubling by-product of their inadequate investigations and lack of reliable evidence. That is not only misuse of their copyrights but also misuse of the courts. The real reason they want to strike the defense is expressed at the bottom of page 8 of their memo. The response memo might consider asserting that the defendant would certainly be prejudiced if not allowed to proceed with the misuse defense including discovery.

Art said...

The judge needs to examine this motion giving benefit-of-the-doubt to the non-movant (defendant). So assuming that defendant has been innocently targeted by the RIAA litigation machine, is the affirmative defense that "plaintiffs abused copyright" sufficient to be presented by defendant at trial? Yes, absolutely!

The argument is not "insufficient" or "redundant" because it is protected by the Noerr-Penington doctrine (defendant is petitioning for a redress of grievences), and provides specific allegations about how the plaintiffs "nationwide anti-piracy efforts" led to defendant becoming a target. Plaintiffs used their copyrights as a basis for the litigation campaign and so misused their copyright. There is a suitable remedy for the defendant for this abuse by the plaintiffs, mainly, the revocation of the copyrights in question.

The argument is legally sufficient. I'm sure Ray can cite lots of cases. Restraint of trade can also be shown here: at the very least, the defendant has been stifled from using her own Internet account for fear of further litigation based on the copyrights held by plaintiffs. Also, now that plaintiffs are "partners" with Kazaa, perhaps the market they are controlling is the one for "Online Media Distribution Systems". If the plaintiffs don't see the specific and factual claims in this case, then they haven't read any of the briefs filed by the defendant. Also, she has standing because the injury she has received is that of being an ongoing target of the plaintiffs litigation machine.

Now regarding the "conclusions and buzzwords" arument of the plaintiffs, I can't really comment, as the plaintiffs seem to be experts in that area.

In conclusion, this affirmative defense should not be stricken. With all due respect, the jury should decide whether the defense has merit, not the judge. Deciding the issue at trial also serves public policy, because it will then be used as a precedent for future cases.

raybeckerman said...

Don't worry, I've got everything covered. Their brief was amateur hour. Complete nonsense. Judge Trager will not be impressed with this motion.

Thing is, I can't discuss it with you now but when you see my opposition brief you'll feel better.