Sunday, March 01, 2009

Defendant fighting back pro se in Georgia in SONY BMG Music Entertainment v. Simms

In one of the recent flurry of cases that the RIAA commenced just prior to its announcement that it 'had not filed any new cases in months', SONY BMG Music Entertainment v. Simms, the defendant -- appearing pro se -- has been fighting back.

On January 30th she filed an answer and counterclaim.

On February 23rd she filed a motion for leave to file an amended answer and counterclaims.

The same day the RIAA filed a motion to dismiss her counterclaim.

[Ed. note. By my calculations, Ms. Simms could have filed an amended answer as of right since no reply to the counterclaim had yet been filed by the RIAA. I hate seeing pro se litigants having to defend themselves from the RIAA vultures without legal assistance. Calling all Georgia lawyers: please, someone, help this young lady. -R.B.]

Answer with Counterclaim
Defendant's Motion for Leave to File Amended Answer
Plaintiff's Motion to Dismiss Counterclaim

Keywords: lawyer 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 portable music player


Alter_Fritz said...

So,is the judge expected to role a dice which one of the two contrary statements by plaintiffs are a lie?

has plaintiffs detected as initially claimed or have their illegal investigators from media sentry detected as claimed in the motion to dismiss?

(of course those that know already about their modus operandi no matter who "detected" whatever, it can in no instance be an individual that they have detected.
So a double plus ungood statement this RIAA lawyer made here)!

Anonymous said...

23) ...settlement of a claim for which Plaintiff has no evidentiary support, and for which Plaintiff will have no evidentiary support even after a reasonable opportunity for fither[sic] investigation and discovery, and for which there is no legal basis.

This man agrees with this argument, which has appeared often enough in the comments to this blog, and is happy to see it appear in court filings. The RIAA is unable to prove that any incident of Actual Distribution has ever occurred. Music files – and even a P2P program – on a computer are not illegal. P2P programs do not keep logs. Making Available (i.e. Attempted Distribution) isn't a crime.

Before the RIAA is allowed to proceed any further in this case they should be required to demonstrate to the court how their case can actually be proven. What evidence exists that they can discover that will factually prove their case. Remember that not only cannot an Individual be identified by any P2P user at the other end, even the infringing Computer cannot be identified with certainty, or its actual location. The RIAA's contention that if we find the files in Exhibit A + Exhibit B in a forensic examination then we have identified the infringing computer IS COMPLETELY FALSE! They haven't even identified the "infringing" hard drive at that point since the identical files may reside on multiple computers.

Suggested practice tip to Ray: In your earliest discovery opportunity require the Plaintiffs to lay out in detail just how they can prove their case with the evidence at hand, or any additional evidence that they may secure through coercive discovery. Point out all the holes in their methods and ask the court to dismiss on the grounds that the Plaintiffs have no ability to prove their case.

{The Common Man Speaking}