Tuesday, January 29, 2008

RIAA withdraws Lava v. Amurao, argues it should not be assessed attorneys fees; defendant moves to exclude MediaSentry evidence for illegality

A number of motions were filed on January 28th, by both parties, in Lava v. Amurao, pending in White Plains, New York, before Judge Brieant.

First and foremost, the RIAA has moved to voluntarily dismiss its case, with prejudice. In an unusual tactic, it affirmatively argues that it did nothing wrong in pursuing Mr. Amurao, and should not be charged with Mr. Amurao's attorneys fees.

Other motions filed:

By defendant:
--to exclude MediaSentry testimony on ground of illegality;
--to take deposition of Matthew Oppenheim; and
--to compel discovery into the record companies expenses per download.

By plaintiffs:
--for discovery sanctions against Mr. Amurao; and
--for summary judgment dismissing copyright misuse counterclaim.

Plaintiffs' Memorandum of Law in support of voluntary dismissal*
Exibits to plaintiffs' Memorandum of Law in support of voluntary dismissal*
Plaintiffs' Memorandum of Law in support of motion for summary judgment dismissing counterclaim*
Plaintiffs' Memorandum of Law in support of discovery sanctions*
Defendant's motion for exclusion of MediaSentry evidence on ground of illegality, compel deposition of Matthew Oppenheim, compel expense discovery*
Defendant's memorandum of law in support of exclusion of MediaSentry evidence on ground of illegality*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica
Heise Online (German)
PC World


Keywords: 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


Alter_Fritz said...

On June 1, 2005, Plaintiffs’ investigator, SafeNet, detected an individual using the
Limewire file sharing program to distribute 528 music files[...]


Anonymous said...

The RIAA motion reads somewhat like: We claimed we identified an individual, so we sued them for copyright infringement. When the individual we thought we identified was not the proper individual, and didn't tell us who it was, it wasn't fair. Because the defendant didn't tell us who infringed our copyrights, we don't feel it is our responsibility to pay for bringing a lawsuit against an innocent person.


Anonymous said...

So the RIAA cuts and runs yet again. Even while still claiming, This case arises out of the substantial copyright infringement that took place on Defendant Rolando Amurao’s computer and through his Internet account. It's kind of like them saying, I would have beat you like a bell, if I'd only stayed around to fight.

Yet they feel they did no wrong, and that fact that the Defendant is out thousands of dollars is just his own damn bad luck. And we want discovery sanctions too.

Oh, and since they're leaving the case, they don't want to be judged on their own questionable, if not outright illegal acts. Please give us a summary judgment on the Copyright Misuse claim, so that we can wave that judgment in the faces of all the other judges considering that issue.

Does that about sum things up?


(1) Defendant will suffer no legal prejudice as a result of the dismissal of Plaintiffs’ claim; Defendant does suffer huge financial prejudice.

(2) Plaintiffs brought their claim in good faith and were themselves put to significant expense having to sift through Defendant’s misleading statements and false discovery responses; Plaintiffs filed their suit knowing they'd never identified any individual in the first place, and hoped if they squeezed the only person they could identify – the ISP account holder – into fingering somebody else, then they might be able to build a case on that.

(3) Defendant acted unreasonably by rejecting Plaintiffs’ efforts to resolve this matter and providing false information; Defendant was guilty until proven innocent, and simply should have done everything Plaintiffs demanded of him, despite never having been guilty of any of the charges brought against him. Was Defendant's own damn fault what happened to him.

(4) Plaintiffs acted diligently to dismiss this case as soon as they learned that Defendant’s adult daughter was the direct infringer. Plaintiffs should have never sued the wrong person in the first place, with no evidence that he was ever the infringer they sought.

There Has Been No Vexatiousness At All On Plaintiffs’ Part. Except for suing someone, and continuing the suit, when you never had any evidence that they had performed the infringement in the first place. That's pretty undue in the average person's book.

Courts find ill-motive where, for example, the plaintiff “never had any intention of providing discovery . . . , thereby seeking the advantage of filing its charges without having to support them,” Does rather speak for itself, doesn't it.

Any demand for attorneys’ fees by Defendant would fail the first and third Fogerty factors because Plaintiffs’ lawsuit was neither frivolous nor objectively unreasonable. Maybe I missed it, but I thought under the Copyright Act you only needed to be the prevailing party in ways that advance the goals of the Copyright Act itself. Surely the Defendant, who by extension represents All Defendants in this position, has won an important victory here that should apply to other similarly situated Defendants.

Defendant Should Not Be Awarded Attorneys’ Fees Because Plaintiffs Reasonably Acted With The Purpose Of Protecting Their Copyrights. It's not reasonable to sue the wrong person with evidence that you knew from the beginning never identified as the actual infringer.

Defendant can present no evidence to suggest that Plaintiffs had any motivation for bringing this suit other than for the legitimate purpose of protecting their copyrights, because there is no such evidence. Whether or not evidence can be uncovered, the clear motive for suing the ISP accountholder is, and has always been, to force them to provide evidence of the actual infringer – WHICH THE RECORD COMPANIES NEVER POSSESSED.

One last one, simply so that I don't fill up Ray's blog entirely.

Plaintiffs brought this case based on substantial evidence of Defendant’s infringement of Plaintiffs’ copyrights. Because clearly there was NEVER any evidence that Defendant infringed Plaintiff's copyrights – clearly he didn't – then there was never "substantial evidence" of anything. The RIAA simply lies and spins and lies and spins and lies and spins…


Anonymous said...

The RIAA can't be happy to see these!

CodeWarrior said...

Looking at the page today reveals lotsa good news for the side of good...

In the legal document...
"Defendant's memorandum of law in support of exclusion of MediaSentry evidence on ground of illegality*"

After reading the issue about the "investigator" not be licensed to practice as such in the state, mysteriously, a giant smile spread across my face..."Who was that illegal investigator...was it, hmmm, I dunno, maybe MEDIA SENTRY?"

CodeWarrior said...

"Accordingly, the activities of plaintiffs’ unlicensed private investigator, Media Sentry, violate
New York State law, and therefore no testimony or evidence gathered in the course of their
investigation should be admissible. The company clearly falls within the definition, in that its
primary function is “the securing of evidence to be used in the trial of a civil...case[].” Illegally
obtained evidence is not admissible in a civil case, cf. One 1958 Plymouth Sedan v. Pa., 380 U.S. ..."

Mr. Altman, I friggin' LOVE that...Check, and MATE...wiping out the Media Sentry submissions because they are illegally obtained is masterful!


Anonymous said...

Question for Ray (or anybody else who might know):

Are any of these motions moot, after their motion to dismiss, especially the motion about discovery sanctions? Also, how unusual is it to argue against something (attorney's fees) when it has yet to be asked for?

I have not read any of the motions; I'm not sure which ones (if not all) are still in play.



Anonymous said...

Oh my goodness. I just read through some of the exhibits to the plaintiff's motion and I can't believe they were submitted by the plaintiff. Wow, talk about revolting and underhanded tactics by the RIAA lawyer during questioning. I was horrified at how they tried to trick someone who did not have a firm grasp of the English language (hence the interpreter) to say something that might be considered an admission of guilt. The transcripts of those depositions just do not paint the RIAA in a positive light, nor do I see how they support the plaintiff's claims.

kevix said...

was it always assumed that the ip address for an isp = the person who did it and the person we sue? Or that a commonly use internet nickname = person who did it? By saying that they sued the wrong person at a certain ip address for an isp, does that mean that the idea that the ip address or internet nickname is no longer the 100% certain way to determine who is liable?

treeman said...

Defendant can present no evidence to suggest that Plaintiffs had any motivation for bringing this suit other than for the legitimate purpose of protecting their copyrights, because there is no such evidence.

The plaintiffs motivation was for the profit of RIAA which does not pass the recovered damages to the copyright holder. The RIAA profits at the expense of the artists and copyright holding company.

Fair damages would be for lost revenue to be passed directly to the artists and copyright holding company.

Anonymous said...

"Defendant can present no evidence to suggest that Plaintiffs had any motivation for bringing this suit other than for the legitimate purpose of protecting their copyrights, because there is no such evidence."

One can almost imagine the sound of shredders in the background as that was written.

The RIAA is implying that any suit that serves the larger goal of "protecting their copyrights" is legitimate regardless of its actual merit, and if that tenet is accepted, thus granting the RIAA perpetual and absolute immunity from responsibility for any of their actions no matter how reckless, unwarranted or illegal they may be.