Recording Industry vs The People: In Capitol v. Weed court dismisses certain counterclaims, sustains civil conspiracy, abuse of process, invasion of privacy claims

Tuesday, April 22, 2008

In Capitol v. Weed court dismisses certain counterclaims, sustains civil conspiracy, abuse of process, invasion of privacy claims

In Capitol v. Weed, a Phoenix, Arizona, case, the Court has granted leave to amend the answer to include counterclaims for:

-abuse of process (filing documents for purpose of coercing payment of money);
-invasion of privacy; and
-civil conspiracy to commit computer fraud and unlicensed investigation.

The court held the following claims to be insufficient:

-declaratory judgment;
-civil conspiracy to commit extortion; and
-violation of Fair Debt Collection Practices Act.

The court ruled that the counterclaims were not barred by the Noerr Pennington doctrine.

April 21, 2008, opinion and order partially granting and partially denying motion for leave to amend answer* (2008 WL 1820667)

* Document published online at Internet Law & Regulation

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

7 comments:

Alter_Fritz said...: That's a start to work with...; April 22, 2008 at 5:28:00 PM EDT
Alter_Fritz said...: I respectfully submit that the court someway might have erred in his reasoning when it stated:

Whether this Court has independent jurisdiction over Defendant’s counterclaim, however, is only relevant in determining whether the Court has subject matter jurisdiction if Plaintiffs voluntarily dismiss their claims. Plaintiffs here have not dismissed their claims, and the Court’s subject matter jurisdiction over Defendant’s counterclaim is not at issue. Further, Defendant fails to address Plaintiffs’ argument that this declaratory relief is redundant and unnecessary. Defendant does not allege any issues in Count One of her counterclaims that will not already be litigated in Plaintiffs’ case in chief and Defendant’s own affirmative defenses. Therefore, the Motion to Amend the Answer to File Counterclaims is denied with respect to Count One.

While Plaintiffs have not yet dismissed their claim at least the regular readers of this blog know that such a reaction is the standard modus operandi once Plaintiffs start to face serious problems from the defendants opposing discovery demands and they have no way to trick a ruling judge into dragging that matter on undefinetly without actually needing to respond to defendands demands.

If Weed really failed to address Plaintiffs arguments here so that the Judge did not know why the motion to have counterclaims at least pending for the time till its trialday morning is important to be granted, can Weed even despite the fact that the court dismissed that Claim somehow get the court to rule again/reconsider its decision?

Can the judge sua sponte once he will see that plaintiffs do indeed run non the less reverse his order and handle the matter of counterclaims as if he had not demied the motion this time based on his observation that Plaintiffs did not dismissed them at least not till the date of the writing of his order?; April 22, 2008 at 6:34:00 PM EDT
Kathleen Williamson said...: I welcome all feedback and thoughts regarding this, esp from other lawyers, posted to this comment list.
Kathleen Williamson; April 23, 2008 at 3:20:00 AM EDT
Alter_Fritz said...: hi katwilie
I googled your Name and the first few entries were about an "interesting"-looking (*) Singer/Songwriter with that name.

I thought for myself "what the F un why want a singer feedback from other lawyers that can't be the right Kathleen so I fast forwarded a few result pages and got that one http://www.williamsonandyoung.com/bio.html and was in for a surprise someway down the text.

Man was I wrong with my prejudice thinking! :-)

Cool!
Can we have a few 128kbps low quality encoded samples for free on TPB from your work?
I'm sure RichardL.Gabriel @ piratebay.org would be happy to seed those for you. ;-)

Please note that IANAL though so if you see comments from me take them with a shipload of salt! (Ray -as far as I'm aware of- has however not deleted any of my comments so far for comment policy 8 violations. Rule 7 however...) :P

A warm welcome to this blog from me and stay in touch with it:
Ray is doing a very special, very valuable and helpfull work for society here!
(If anyone deserves to become Lawyer of the Year it's him, but maybe Rays kind of attitude towards your both profession isn't mainstream enough among most of your peers given what kind of guys get Super Lawyer and Lawyer of the Year Awards. :-(

(*) http://www.kathleenwilliamson.com/busphoto.stayton.jul.05.jpg; April 23, 2008 at 11:32:00 AM EDT
Alter_Fritz said...: Ah, me found the samples myself on cd baby

http://audio.cdbaby.com/6e5361ff/k/kwilliamson-01.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-02.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-03.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-04.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-06.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-09.mp3
http://audio.cdbaby.com/6e5361ff/k/kwilliamson-10.mp3

http://cdbaby.com/cd/kwilliamson; April 23, 2008 at 11:47:00 AM EDT
Anonymous said...: I'm glad to see that Noerr Pennington doctrine doesn't allow Plaintiffs to pummel Defendants at will with no legal recourse through the courts.

-DM; April 23, 2008 at 12:42:00 PM EDT
Alter_Fritz said...: 2 part comment one on topic to ray and one offtopic to katwillie

Ray, so far you only link to the index of litigation documents section where you have the links to the files on P&F.
I noticed in this case here for the first time that there is a (I think) good feature missing in that way:

I clicked on the weed link above and saw among others the document link regarding HDD protective order stipulation.
Me remembered in that moment that me had commented not so long ago about the importance of some technicalities in such an order (not remembering at that time it was THIS case here coincidently) [yes, not only has the RIAA litigation machine itself and some here not to be mentioned big apple judge lost the overview what is going on and was said and done in specific cases but me gets problems to remember what was what case again just from the index of litigation documents too]

I have not maintained so far a bookmark list of all your blogentries where I commented on so I had to use the google search feature to find here the comment again I was searching for.

So maybe it could be a nice idea if you would add some link information to your actuall blogentries where you introduced those in the index mentioned documents? Just my thought given the hops i needed to find your blogpost dealing with that P&F link

--

the off topic part to katwillie

Wow, listening to the free 2 minute samples me got hooked on track 10 "An Hour to Maggie" of your Album. I totally love that one! Unfortunately me does not have a credit card and isn't rich either to invest 15 bucks (even though thanks to the hard euro that would be cheaper for me) for just one song Me really loves from listening to the sample alone.

I do hope that my remarks about HDD stuff and previlege log problems based on "files" rather then "sectors" were helpful for you and/or other lawyers and if you like to show your gratitude I would be totally happy if you would send me -via the "online media distribution system" googlemail- a full copy of that track. I promiss that I will keep it only for me and that http://thepiratebay.org/user/Alter_Fritz will not distribute it further unless you give me the explicit written permission to do such a thing.

alterfritz BEI googlemail PUNKT com

Vielen lieben Dank im voraus!
A_F

P.S. If you don't know yet how to do high quality FLAC rips from CDDA sources jsut drop me a mail comment too.; April 24, 2008 at 12:17:00 PM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove