Tuesday, May 20, 2008

RIAA opposes reconsideration in Elektra v. Barker

In Elektra v. Barker, the RIAA has filed a letter opposing Ms. Barker's request for waiver of a pre-motion conference in connection with her planned motion for reconsideration.

May 20, 2008, Letter of Richard L. Gabriel and Timothy J. Reynolds to Hon. Richard J. Sullivan (opposition to waiver of pre-motion conference for reconsideration motion)*

* 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


Anonymous said...

Like Wow, this is a surprise.

Isn't this just an RIAA knee-jerk reaction to oppose anything from the Defendants? What will this pre-motion conference accomplish except for using up lawyer time and creating billable hours – mostly to the determent of the Defendant? Is the Defendant going to suddenly withdraw their motion because there was a conference?

And speaking of delays, I can see that the RIAA wants to get to discovery in order to harass the Defendant and pray to find some actual real evidence, since they have none yet. Even so, they have shown no inclination to actually go to trial in all but one case so far, and they proved nothing there except that juries and jury instructions can be incredibly stupid. Some while back one judge required the RIAA to put-up-or-shut-up in another case and the RIAA turned tail and ran. That would seem most appropriate here.

It's interesting that the RIAA says that acceptance of their Making Available argument doesn't constitute "manifest injustice", when another judge just said that accepting that argument most certainly was exactly that. Considering that this court may well have committed a "clear error" in relying on other court's opinions that have since been vacated or reversed in this matter, there is much to justify reconsideration at this moment.

The RIAA claims in this letter that they will prove actual copying and distribution of specific files. How they expect to do this remains a mystery to us all since it has been well shown here and other places that short of an actual human witness to the act, such proof does not, and never did, exist. P2P programs don't keep logs of their activity afterwards, and whatever MediaSentry may have copied was certainly "authorized". Plus, MediaSentry HAS ABSOLUTELY NO IDEA just from who, or what computer, they got whatever it was that they got.

And here's where it gets real curious. If the RIAA is going to prove, as they state to the court (and I'm sure they wouldn't dare lie to the court about this), actual copying and actual distribution to others of specific copyrighted works, why do they even need to keep the Making Available argument in this case? Why not be done with all the arguments over it by simply dropping it entirely and proceeding on to what they have promised they can prove that doesn't involve it? It's not logical, if you don't need something and it's being fought over to delay the case you insist you want to pursue, to keep it in the case for no good reason.

Of course once discovery starts, if it ever starts since the RIAA really doesn't have a case here that should have ever entitled them to go fishing for the evidence they so clearly don't yet have, the first question to the RIAA should be: And just how do you plan to prove actual distribution of copyrighted works in this case?

And don't answer any of their questions until they answer that one.

The RIAA is overly anxious to get on to the beating up of the Defendant through discovery, which is the only thing they do best here.


Anonymous said...

I love how the plaintiffs here have already started their arguments for the Thomas case. I do believe they're trying to get another courts opinion to justify their shoddy work (lying by omission) in the Thomas case (failure to notify the judge of a higher precidence, failure to notify the judge of the vacated order in the Howell case).

XK-E: As for why they need the making available argument to remain: MediaSentry only downloads a few songs, but the plaintiffs pull more songs, which they potentially hold copyright to, out of the giant list, without any actual downloading occuring. I believe it was another case where Ray tried to have those additional songs removed, but the judge allowed them to stay and said the plaintiffs had to prove those songs were actually downloaded by someone.

Let's all keep our fingers crossed the judge in the Thomas case does admit the "making available" theory is a manifest error of law, for many many reasons.


raybeckerman said...

I am pretty sure that Judge Davis has already figured out that it was a manifest error of law.

This time, by calling for amicus curiae briefs, he is going to make sure that it does not happen again.

No amount of glib gamesmanship by the RIAA lawyers is going to carry the day this time.

I truly believe you can all rest easy on this one. The law is very very solid and very clear on this point: in order for there to be a violation of the distribution right there has to be

-a dissemination

-to the public

-of copies or phonorecords

-by a sale or other transfer or ownership, or by a license, lease, or lending

You need all 4 elements.

How many does the RIAA have?

Try 'none of the above'.

Now that the judge is going to get briefs from outside, where it won't be a giant team of trained professional liars running roughshod over one overworked underpaid guy, there is no way the judge is going to repeat the mistake he made on October 4, 2007.

Plus -- at the moment he seems to think that the August 20th "Atlantic v. Howell" decision which the RIAA cited to him was vacated AFTER the trial. He doesn't know yet, but is bound to find out when he gets the briefs, that in fact the Atlantic v. Howell decision had been vacated on September 27, 2007, A WEEK BEFORE THE TRIAL, and the RIAA knew, but never told him. If I were he, I would go ballistic upon learning that.

Alter_Fritz said...

Ray, I do not want you to speculate if it will happen or not and if then what will happen, but just asking a technical question:

Since Mr Gabirel gets a new job a few days before that date, and he was the guy that stood in front of Judge Davis the first time when he "forgot" to mention the Howell incident:

CAN Judge Davis slap -the at that time already a Judge too if the system in Colorado works as greased- Mr. Gabriel legally still with Rule 11 "sanctions"? Or is that impossible because he is a judge too then?

raybeckerman said...

Yes he can, and in my view should, impose sanctions upon Mr. Gabriel, other members of the legal team, the firm, and the plaintiffs, for

(a) failing to call to court's attention controlling contrary authority and

(b) failing to advise court that authority which they had cited to court had been vacated a week prior to the trial.