Tuesday, May 06, 2008

Counterclaims for extortion, conspiracy, trespass, consumer fraud & abuse, abuse of process upheld in Atlantic v. Boyer

In Atlantic v. Boyer, in Tampa, Florida, the RIAA's motion to dismiss counterclaims has been denied.

The counterclaims are for

--civil conspiracy (to commit extortion, illegal investigations, and computer fraud),
--computer fraud and abuse,
--deceptive and unfair trade practices,
--declaratory judgment, and
--abuse of process.

[Ed. note. From an examination of the court papers, it appears that the motion was made on May 5th, and denied on May 6th, and that the judge dispensed with defendant's need to file opposition papers. This fast turnaround is not surprising in view of the Court's having ruled on the very same counterclaims last year in UMG v. Del Cid. The only surprise is that the RIAA risked Rule 11 sanctions by making a dismissal motion in the first place. It argued, at pages 28-30, that UMG v. Del Cid had been "wrongly decided". If I were a client of Holme Roberts & Owen I would not be feeling too great about the representation I am receiving, right about now. -R.B.]

RIAA memorandum in support of motion to dismiss counterclaims*
May 6, 2008, Order and Opinion denying motion to dismiss counterclaims*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net (5/7)
Daily Tech
Ars Technica


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


Anonymous said...

YMMV, however, I don't feel that the RIAA lawyers are too very worried about Rule 11 sanctions. So far they've not been sanctioned even once for their behavior, or told that they've even come close to actually being sanctioned. It has only been suggested by one judge that it could happen, and the motions in favor of it in that case seem a long way from resolution.

Until it actually happens, I believe the RIAA feels immune from them.

And when it does happen, I expect them to believe they will only receive the lightest slap on the wrist on the first occasion, and that they can easily survive that light tap, or even several of them.

While they may teach (I don't know) in law school that Rule 11 sanctions are to be feared at all costs by an ethical lawyer, for now Rule 11 in the federal courts is to all appearances both a toothless, and paper, tiger.


raybeckerman said...

For you litigation buffs out there, let's take a quiz.

The facts.

A lawyer just filed a 30-page brief in which he (a) devoted 28 pages to repeating the same arguments he had made in a motion that was decided less than 8 months earlier, and (b) devoted 3 pages to telling the judge that his previous ruling was "wrongly decided".

Question #1

What will happen?
(a) The lawyer will win the motion.
(b) The lawyer will lose the motion.
(c) The lawyer will have to find a new line of work.
(d) Both (b) and (c)

Question #2

If you are the client who pays lawyers to do things like that you are
(a) A smart businessperson
(b) A moron
(c) A fool
(d) Both (b) and (c)

Anonymous said...

The next time the RIAA is in front of this judge, they should argue that the two prior cases were both wrongly decided, and therefore, two wrongs make a right... Well wait a minute, that wont help RIAA either.

Come to think of it, what the RIAA guys ought to do is start working on that answer to the counter-claims...

Anonymous said...

Ray you are mean!

Those poor well known record companies have it hard enough..

they are obsolete and now you rub it into their faces that they have hired idiots to represent them in a "war" they can not win ultimately.
Even if they manage to shut down the internet and all electronic remote distribution, all it needs is ONE digital copy and the good old sneakernet for "the people" to win against them.
Even if that might be against copyrightlaw which I of course do NOT condone!!

Alter_Fritz said...

^^ that one was me ^^

was to fast with clicking


Anonymous said...

Plaintiffs may wish to claim that they are only pursuing legitimate efforts to enforce their copyrights. That does not, however, allow extra-legal methods, illegal investigations, violation of other protective laws on the books, or the creation of new case law to fill in perceived voids in the current Copyright Act – nor barratry on their part prior to filing this case, which is continued barratry as they try to coerce a settlement that has no justifiable basis on the facts or merit – as part of any legitimate effort.

Translation: You can't just go out and do anything you can self-justify to yourself as right just because of your perception that you have been wronged by another party. In truth, even if everything (and that is a major stretch) you allege happened here exactly as you allege it did (without any evidence whatsoever, btw), that is no proof that any of this ever cost you so much as a single lost sale. Music is not essential to life, and people will go without when the costs are too high.

As for the "...public policy desire to have copyright owners enforcing their rights", I suspect few of the public these days have that desire at all given the way this is happening.

This, btw, is choice:

because Defendant is not a competitor of the Record Companies and indeed cannot allege anti-competitive behavior aimed at interfering with the business relationships of a competitor, the sham litigation exception does not apply.

At other times the Record Companies paint these Defendants as direct competitors in the digital distribution of music over the Internet.

Lastly, regarding the lovely, hallowed legal phrase: has not and cannot plead any of the required elements, the RIAA has not and cannot show any actual distribution to unauthorized persons has ever occurred from the computer they believe they have identified. They can only rely on legal missteps such as jury instructions claiming that simply Making Available is infringement, or judges who (oh so very wrongly) insist that if all the elements for possible infringement are present, then infringement has inevitably occurred even if it has never been witnessed.

holding that “threats of litigation, even economically ruinous litigation, even unmeritorious litigation, do not constitute extortion”

And what moron wrote that? Oh yeah, a [deleted] judge in a DirectTV suit that used similar tactics to the RIAA's current suits, and made the courts the safe hunting grounds for rich corporations against individuals. A judge who should have been impeached the very next day after that decision.

Defendant has suffered no loss. She has not settled the underlying case. Plaintiffs have not obtained any money from her. Thus, there is no extortion.

Only someone with no heart OR brain could have said something that dumb. Fighting in court never comes for free, and even getting ones fees paid by the loser doesn't compensate for all the effort and anguish involved.

(Note to Anonymous: The RIAA guys don't have to start working on their answer to the counter-claims. They just need to xerox their previous answer, adding a paragraph or two about how it simply can't be Abuse of Process when they're the ones doing it. After all, they're only acting legitimately to protect their legitimate rights as the public desires of them to do.)


Anonymous said...

Hmmm. Someone on Wikipedia put a random link from the "Extortion" article to the "RIAA" article. Good times.

Yeah, the "it wasn't extortion because it didn't work" defense is a hoot.

I was especially curious whether the "mirror image" defense against a counterclaim for declaration of non-infringement would work this time. It didn't. Perhaps the courts are catching on to the game of chicken these plaintiffs sometimes play, trying to drop cases without prejudice at the last possible second.

Unknown said...

Note to XK-E. Remember that our viewpoint re: Rule 11 is across the board, not just a single court and not just a single instance. What happens else where is not relevant to the chances of it happening in this particular instance.


Anonymous said...


Do you hear about Rule 11 happening often in other cases? Me neither. And I remember a hearing where Ray was told by the judge very directly that this judge took a very dim view of Rule 11 motions in his courtroom.


Your post leads me to speculate that maybe the Defendant should have paid the settlement demand first, then filed suit for extortion. Not only would the extortion have happened, but then the RIAA would be on the defensive position of having to deal with all the roadblocks placed against counter-claims including NP litigation privilege.


Anonymous said...

So, which of the RIAA officers, lawyers, and Atlantic officers are going to go to jail? Or will that require a RICO conviction?


Anonymous said...

Lets see, the RIAA has been at this litigation for a few years now. They've broken laws in probably every state in the Union with Media Sentry's unlicensed investigation, and if the software is sharing unauthorized files--say personal information, then they've done some thing that I know has sent some other people to prison.

They've probably made millions of dollars with what amounts to a call center, a photo copier, and a write once litigate everywhere boilerplate lawsuit. They improperly join cases to economize their filing fees, and sue on a "making available" theory that doesn't appear anywhere in the actual copyright law. This is not about law, or justice, or anything like that. This is about money, and getting it from others by using the law.

Call me cynical, but just how is this thing called "law" supposed to work? Seems to me that the RIAA is thumbing it's nose at the ENTIRE legal system, and getting away with it. Sanctions? What sanctions? These guys are little better than stereotypical mob thugs offering "theft prevention insurance." And they are doing so on a grand scale. By the time the "legal systems" figures it out, these guys will have bought a series of large islands and retired. Chutzpah? I doubt it. These guys have figured that the legal system is like a dumb kid trusting the nice lawyers to play by the rules. Guess what. The RIAA ain't playing by the rules, and thousands of people are being abused.

Piracy, the old kind. The kind where someone with guns and smelly sailers used guns and murder to take money and convertible property away from some poor bloke trying to make a living. Now they use lawyers and boiler plate filings, but it's the same game.



Anonymous said...

AHHH, Making Available.....

let's see, there are IBM, Apple, Intel and AMD, without their contribution to the download process, the computer, no one could have up or down loaded their precious bits....

and AT&T, Verizon, et. al., without the band width no transfer could have occured.

Oh, and let's not leave our Vice President Al Gore, after all hi did create the internet didn't he? (at least he says so! So why deny him the chance to prove it)

those files ever get burned? Verbatum, Ridata, Memorex, Windata, Phillips, and a slew of others are responsible for that "making available" situation

and those computers and disks need to be purchased or stolen from somewhere, so Circuit City, Best Buy, Walmart, Target, Sears, Jewel/Osco, Walgreen, Meijer Thrifty Acres, Micro Mart, the list goes on and on.....

Of course, whoever ripped those files in the first place, didn't do it without help... they needed to beg, borrow, or steal an actual CD/DVD.... and someone had to have bought it in order to be begged, borrowed or stolen (God forbid, that the ripper actually spend his own money to BUY the disk with which he cannot do what he wants)

so whoever burned the master disk, and pressed all those disks that were purchased by consumers.....

OH MY! looks like RIAA is going to need to sue their own employers!

Anonymous said...

It seems to me that they pretty much implicated themselves in attempted extortion with their comment of:

Defendant has suffered no loss. She has not settled the underlying case. Plaintiffs have not obtained any money from her. Thus, there is no extortion.

Anonymous said...

Personally, I think that the people of this country who believes in personal freedoms should get together and see if a class action lawsuit can be filed against the RIAA. We need to show these playground bullies that personal property and personal freedoms are above some child like tantrum. You don't sell someone an item, then tell them after you sell it to them what they can and cannot do with it on a personal level. If i decided to buy a magazine and cut out all the ads and paste them to a canvas, call it artwork and show some friends, that is my choice, i am not making or creating a business from it, therefore my personal freedom (not public or capital) should in no way be violated because i didnt have permission from the company who sold me something to do with it as i want. Perosnal freedoms before and over capital and public.

raybeckerman said...

You mean like this one?

StephenH said...

I cannot wait to see RIAA's answer to these counterclaims. I hope that defendant wins these counterclaims, as this will show RIAA that extortion is wrong, and that automated bots don't prove something was infringed.