Recording Industry vs The People: Motion to dismiss complaint, based upon Bell Atlantic v. Twombly, denied in Elektra v. Schwartz

Tuesday, April 01, 2008

Motion to dismiss complaint, based upon Bell Atlantic v. Twombly, denied in Elektra v. Schwartz

In Elektra v. Schwartz, the defendant's motion to dismiss based on Bell Atlantic v. Twombly, has been denied by Judge Trager.

April 1, 2008, decision denying motion for judgment on pleadings*

* 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

3 comments:

Anonymous said...: WHAT IS WRONG WITH THESE JUDGES?

Indeed it would be difficult, as a practical matter, for plaintiffs to allege the exact times at which Goldshteyn downloaded particular recordings.

Indeed it will be impossible for plaintiffs to ever know this information. Yet that's what the law requires: Precise information on when and how the alleged infringement occurred.

the Court was motivated, at least in part, by the concern that antitrust discovery can be particularly onerous

And what the RIAA puts defendants through isn't???

This next item is truly disgusting:

The complaint sets forth the acts allegedly constituting copyright infringement with sufficient specificity to put Schwartz on notice of the grounds for their claim.

Let's see here. They can't prove downloading (alleged infringing files may have arrived by other legal means, e.g. ripping from CDs), they can't prove uploading to any non authorized person, making available isn't in the copyright act, the only "evidence" they've presented is clearly illegally gathered, their experts aren't, and this judge says, "Hey, they've got a reasonable case, so get out your wallets and start spending."

Never have I had such a low regard for the legal system as I now have, having seen judge after judge cave into the RIAA's specious arguments, illegal behavior, and outright lies!

-DM; April 1, 2008 at 5:30:00 PM EDT
Alter_Fritz said...: I have a problem to follow Honourable Trager's reasoning here:
"By contrast, the complaint in this case names the copyrighted recordings that were allegedly infringed and describes the manner in which they were infringed. Indeed, if these allegations in the complaint are proven true, under no circumstances will Schwartz not have infringed plaintiffs' copyrights."

"describes the manner" -> defendant did this and/or did that; a very specific description of the manner of alleged infringement, Totally different then the descriptions of the manner in the Twombly case of course!

"if these allegations[...] are proven true" -> which one the and or only the or one? Does he wanted to say that it doesn't matter and that he believes if its only the "or part" which would be making available that he already concluded that that's something which is a violation of copyrightlaw alone which gives rise to liability without having "illegal copies" in a folder at all (ripped ones from own CDs for example (or are those illegal now after all?!)

"under no circumstances will Schwartz not have infringed plaintiffs' copyrights." -> How so? What about this circumstance:

Q: You installed kazza on your computer?
A: Yes, because I could not figure out how to play my own CDs in Windows Media Player and I was told that I could play them with that program you asked me about

Q: You downloaded songs from other users of that network?
A: No, I only had listen to songs I copied from my own CDs onto the harddrive and I was under the impression that such a use of my property is covered under fair use of the CDs.

Q: But you were aware that by doing this you offered all your own songs for the world to grab from you for free! You made them available, didn't you?!
A: No, I was not aware about that and councel for plaintiffs let me point to the statements of the RIAA on behalf of your clients before that hearing a while ago where the RIAA complained that users of Kazza are mostly not aware that they make available songs and/or their whole harddrive content to the world because of a confusing user interface of the programm. I had NEVER EVER the intention to make anything available and give away digital copies where I have no rights to do so in, I'm not a pirat, I'm an upright lawabiding citizen! I feel offended by your allegations.

Q: Miss Swartz don't make a fuss on the stand: copyright infringement is a strict liability tort, the court does not care what your intentions were! We have proof you made those songs available so you are guilty! [ponders with his fist on the table]
A: [first tears in her eyes but strong-willed] But I did not know, most people say "making available" is not an exclusive right of your clients!

Q: We also have proof you distributed those songs" Here exhibit x the songs you distributed to our investigators!
A: but that's not copyrightinfringement. First they were expressly authorised by plaintiffs to recieve those songs and secondly I did not uplaod any of my fair use copies of my own CDs to anybody else! My technology expert told me that Media Sentry was the only one ever able to get any of the songs due to the fact that they use special software with which only they could "see" the files on my Harddrive. No member of the public could see MY own files and never did get anything from me so!
--

So Judge Trager what now?
No prove of giving copies to the public, no download of illegal copies from others. Only the she made available to some Plaintiffs authorized guys with software that could reach places you and I never ever could and those guys initiated comands to Mrs Swartz harddrive that gave out the copies to them without her intention to do so, her approval or even her knowledge!

Still no circumstances where there was no infringements of plaintiffs rights by Mrs. Swartz?!

Just because it is these days common public knowledge that p2p software is not insignificantly used to infringe copyrights, that fact does not make HER guilty automaticly. If your Honour came already to the conclusions that no matter what happened she is liable before discovery had even started I guess Its fair to accuse you of being biased already pro plaintiffs and their making available argument.

So could you please explain your statement by making clear which specific allegations from plaintiffs would that be and why she is because of them already "guilty" of copyright infringement in your honours opinion even before discovery had even begun? Such a clarification on your part might help to obliterate the impression that your Honor is biased towards the palintiffs in all those "RIAA vs. People"- cases your Honor expressly wished to rule about yourself with Judge Levy instead of have all those cases randomly assigned to other judges too.
Thank you your Honourable Judge Trager.; April 1, 2008 at 6:03:00 PM EDT
Jadeic said...: There is a certain grim predictability to Judge Trager's pronouncements.

So.. while looking for an apposite quote to illustrate this point I instead came across this gem from Carly Fiorina.

“In bullfighting there is a term called querencia. The querencia is the spot in the ring to which the bull returns. Each bull has a different querencia, but as the bullfight continues, and the animal becomes more threatened, it returns more and more often to his spot.

As he returns to his querencia, he becomes more predictable. And so, in the end, the matador is able to kill the bull because instead of trying something new, the bull returns to what is familiar. His comfort zone.”

Does that remind you of any organisation already on its knees?

Dave; April 1, 2008 at 7:17:00 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