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New Dismissal Motion in File Sharing Case
NewYorkCountryLawyer writes "A new motion to dismiss an RIAA peer-to-peer file sharing case has been made, this time in Brooklyn federal court, in Atlantic v. Huggins, reports Recording Industry vs. The People. As in Elektra v. Santangelo, the RIAA had served a boilerplate complaint alleging generally 'downloading' ,uploading', and 'distributing', but without naming any specific acts. Defendants' lawyers argue that "the Complaint alleges in conclusory fashion and upon information and belief that defendant used "an online media distribution system" to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings "available for distribution to others." but "makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred.""
Correct me if I'm wrong, but isn't death a pre-req for becoming a martyr?
no, they're handing a printout with what files were available to be shared - there's no proof, however, that anything was actually shared - which is the point of the grandparent. If memory serves me correct, this is exactly why the judge in Canada threw out the case (i think - can i get a confirmation on this?)
The motion implies that the RIAA did not make any specific allegations of infringement. It claims that it is not enough to show that a person had copyrighted material that _could_ have been downloaded. What is necessary, according to the motion, is to show that a person actually distributed copies of protected works to the general public. Since the RIAA didn't have any specific claims of what works were distributed, when the were distributed, or to whom they were distributed, it does seem like a reasonable line of argument.
People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations
I think this is a civil case - no indictment, no grand jury, no prosecutor, no conviction. And the Rules of Evidence don't require the RIAA to turn over any logs it may have. The Federal Rules of Procedure certainly may, but there are a lot more details to know before they'd be required to hand over their logs.
The reason for allowing a low barrier intitially is that history has shown that if you don't do so you can get stuck in just figuring out what the plaintiff is trying to sue over. The Federal rules basically want to avoid this and get the parties into the meat of the suit--whether they did it or not. Some states still require very specific pleadings. That is, the plaintiff has to spell out in specifics what the defendant did. However, this leads to a lot of legal ploys. One time in a state which required specifics as an attorney for the defense I delayed the lawsuit for eight years withoug getting into any meaningful discovery or even allowing the plaintiffs to move the case forward. Compared to that I'll take the low barrier anyday.
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Although it's evident that C can't successfully sue anyone, for anything because C is NOT the holder of the copyright (B is) ; that may not be evident at the outset.
In Australian law, the burden of proof as to ownership of a copyright is presumed to rest with the plaintiff (C), unless the the defendant (A) makes it an issue./ PA002330.htm
See : http://scaleplus.law.gov.au/html/pasteact/0/244/0
I would imagine it's the same in the USA ?
INAL, just a law student.t le=Main_Page
http://law.flindersclubs.asn.au/wiki/index.php?ti
The other cases don't mean anything to the motion though. The motion is not on the merits of the case but rather whether the plaintiff included enough facts in the complaint. That's it. The Judge will not rule on the merits of the case at all. They (the cases) were thrown in their to start persuading the Judge the defendants should win the case now rather than later. Legally, they will be ignored.
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dude, ghandi was teaching civil disobedience waay before rosa parks had her ego trip. some people take "black history" way to literally.
bite my glorious golden ass.
Here's what happens now. RIAA makes the request to Congress that ISPs open up, on request, records indicating upload (the main problem) transfers citing the obvious rampant criminal sharing going on on the network. Congress, in response, seeing both an opportunity to pad the coffers of its reelection campaigns as well as a chance to strengthen the rights of IP holders, decides to strike a blow to the 4th Amendment and force upload data to be opened upon subpoena.
And here's what happens to defeat that. You have your traffic monitor run, use the information for what you need, and then you remove the logs immediately.
If it's going to cause undue problems for the ISPs I see no reason to travel any other route.
Why not require more specificity in a lawsuit complaint?
Because, a lot of the time you can't "prove it" until you've done discovery and the defendant has handed over emails, records, etc.
The term "information and belief" is a catch all that means "we know they did it, and as soon as they turn over their records, we'll prove it".
So basically, you don't really know that much about copyright, do you?
First, civil actions for copyright infringement use a preponderance of the evidence standard, not beyond a reasonable doubt. Second, an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file. Third, copyright infringement is a strict liability offense; intent is irrelevant. It might play a factor in the amount of damages, but you can infringe a copyright accidentally and still be sued and found liable. Fourth, what the hell do you mean, 'conspiracy'? Again, it's a civil action. Fifth, going back to intent, it doesn't matter if the downloader doesn't know for sure what he's getting; if he makes a copy (as he must when he downloads) then he's liable.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Third, copyright infringement is a strict liability offense; intent is irrelevant.
Intent is irrelevant if you performed the act, but what if you didn't? I'll take the only other strict liability issue I can remember, fucking minors. It doesn't matter if you intended to or not. But intending to or conspiring to fuck a minor is also illegal (cops pick up peeps from chatrooms on that). Because as far as I know, the RIAA has no evidence that a copyright infringement did actually occur. Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine). Yes, the file is available for anyone to download. Did anyone actually do it? The best they can shoot for is intent to violate copyright law.
Kjella
Live today, because you never know what tomorrow brings
IANAL, but...
(b) the RIAA has proof in the form of actually downloading the file, either by themselves or through a representative. If (b) is the case, it either means that they also committed copyright infringement
First of all, you can't infringe on your own copyright, just as you can't "violate your own rights" or "steal from yourself." And while the RIAA may not itself own the copyrights in question, only the party who owns the infringed-upon copyright can file an infringement complaint, so don't expect to see record labels suing their own trade group anytime soon (I take that back, I can almost see situations where that could happen). In any event I'm sure the RIAA has some form of contractual agreement releasing them from any infringement complaints by their member companies.
or it means that a question I've been wanting to see an answer on for quite some time may arise from this case - namely, whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process.
This is sort of like asking "if a person breaks the law but nobody is negatively impacted, did the person break the law?" The answer, of course, is yes, the law was still broken. "Since no new access to the music is created" is just a fancy way of saying "no sales were lost," which, again, is a philosophically important point, but doesn't change the fact that the act is (or may be) illegal.
An infringement of copyright occurs when a right that the copyright holder reserves, such as the right to redistribute the work, is enacted by a party from whom that right is reserved. When you own a copy of a copyrighted work, you own only the copy. The copyright still belongs to the copyright owner, and all rights that are exclusively reserved by the copyright owner remain reserved. Translation: owning a copy of a piece of music does not typically grant you redistribution rights to the music, except as permitted under Fair Use laws.
HOWEVER, as you "own" the copy, you are usually granted ownership rights associated with that copy, including the right to sell the copy or give it away. This is true insofar as music CDs are concerned, though it's not universally true. There are products you can buy that you are not legally allowed to resell, it all depends on the fine print. But, in the case of music CDs, this is why no one cares when you give away or sell, or let someone borrow, your CDs. But when you upload your music to others, you are in effect copying the work (your copy still exists on your hard drive, and every person who has downloaded the music constitutes an additional copy). This is illegal, because you (usually) don't have the right to redistribute the *music*. You can redistribute your COPY, but once you start effectively giving others copies of your (legally unique) copy, you are redistributing the copyrighted work, not your personal copy.
In theory if your copy of the music existed originally as a digital audio file, and whenever you upload it to someone you then delete your copy, repeat ad nauseum, you would not be violating the spirit of the law (though you might still be technically in violation because you're essentially just making a copy and destroying the original, which means you're still guilty of making a copy, something you're not allowed to do). However, this point is mostly irrelevant, because the record industry, wisely, doesn't offer their music in DRM-free digital file formats. It's in CD format, and by ripping the CD you are making a *new* copy of the work, as well as changing it to a new form (which has some legal implications that I'm not familiar enough with to speak of). Fair Use may permit this for personal use, since you have a certain amount of leeway to do what you want with your copy of the work, but if you give that ripped MP3 to anyone, regardless of a
Entrapment works the other way. If a secret RIAA member came up to you and said "Give me this file, please" and you gave it to them, that would be an example of entrapment, though as you noted, this is irrelevant in civil cases.
In this case, we have the opposite. The uploader is saying "Hey, you wanna have a file?" and the RIAA member is simply saying "OK". This is not entrapment.
It works the same way for drugs. The cops cannot initiate a drug sale and then bust you for possession. They can, however, participate in a sale that you initiate, and then bust you.
actually obey the speed limit on the interstate? I would estimate about 40% where I live. If you're willing to pay the consequences, you can violate any law you want.
I see his point though. Is music/software/video piracy a social good when practiced on the scale enabled by the internet? I've seen the arguments on both sides for years, so I'm old enough to be cynical about both sides.
Most pirates download because they're cheap and want instant gratification, instead of waiting until they've paid down the credit card a bit. Others are simply avoiding being completely exploited by the media conglomerates. They use a work for a few weeks and then toss it. From the RIAA's point of view, they should pay full price for each product, but as a practical matter, it doesn't make sense. They need to rent at a fraction of the current pricing scheme. If they were forced to pay, they probably would only buy one or two a month anyway. Then there are the hoarders, who just want to brag on having the latest/most/best collection of stuff. Basically piracy is just a defense mechanism media consumers have come up with to satisfy the addiction to novelty created by media advertising.
The **AA's aren't exactly in business to help the artist either. Anyone who believes that they file these suits to get the money that the artists are owed must be living in a bubble. Standard industry practice is to shave off as much as possible off of royalties as "expenses" and then only pay more if the artist gets a lawyer and an accountant. The only worse center of greed, scams and corruption than the media industry is the federal government.
We are the 198 proof..
If it is a criminal offense evidence must be "beyond a shadow of a doubt"
Make that "beyond a reasonable doubt". There's very often a shadow of a doubt. It's just not always reasonable.
Yes, there is. The Federal Rules of Civil Procedure lay out the types of motions available. Rule 12 is the one we're dealing with here. I didn't RTFA, but a motion to dismiss for failure to state a claim is covered by Rule 12(b)(6). (Scroll down to "(b) How Presented" and find subparagraph (6).) Now, check out Rule 12(e), "Motion for More Definite Statement," which reads:
Basically, "You have 10 days to tell us WTF you mean, or the case is dismissed."
This just brings us back to your needing to get more familiar with the law. All this stuff is covered in 17 USC 501 et seq.
For copyright infringement, there are a couple of different remedies: injunctive relief, damages, seizure and destruction, and costs and fees.
Injunctive relief (i.e. a court order whereby the infringer is told to stop infringing) has no connection with whether there was one infringement or a thousand. A plaintiff is satisfied with a single injunction.
Damages are calculated one of two ways, at the copyright holder's option. First, either the actual damage caused to the copyright holder, plus the net profits of the infringer. In your typical downloading case, these are too negligable to care about. So the second option is statutory damages. There, the infringer has to pay an amount set by the court, within a range set by the statute, and which goes up or down depending on whether the plaintiff can prove that the infringement was willful or the defendant can prove that the infringement was in good faith. But this amount is determined, not per infringement, but per work infringed! If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.
Seizure and destruction are usually more aimed towards professional infringers. The copies they've made, and the tools they've made them with can be confiscated and destroyed. This is unlikely to be applied to John Filesharer, however.
And finally court costs and reasonable attorney fees can be imposed on the loser, if the court wants.
So there's no way for the RIAA to increase the amount of damages just by downloading more than once. Now, if there are multiple works being shared, then that can increase the damages spectacularly, but it's difficult to see why that's an inherently bad thing. After all, RIAA would _not_ be the party responsible; it's the defendant that put up all those different files for download.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Both the song (music/lyrics) and the performance itself is copyrighted (not copywritten -- we're talking about a right to copy, not writing copy). The song is copyrighted by the songwriter, and is subject to compulsory licensing which means that anybody can perform it by paying a set fee to the songwriter. Recording a variation of the song not covered by fair use will require negotiating a license.
The performance is copyrighted by the performer and is only subject to compulsory license according to very strict rules (i.e. any radio station can play music over airwaves but not necessarily over the Internet). In order to copy, sample, or play the song for an audience, one must pay the performer (or more likely the company that recorded the song so that they can withold royalties from the performer). Note that a copy that you recorded yourself at a concert would be copyrighted by the performer and any recording company that the performer may have a contract with would have no say in the deal.
dom
Completely off topic but
I read your linked article, and found it interesting, but it overstated its case. There is a legal (IMHO valid) difference between porn and obsenity, and obsenity is not protected by your first ammendment rights. The difference is determined using the Miller Test, which the article does an excellent job of explaining includes, among other things, community standards. He then goes on to express dismay that the government is judging whether something is art or not, completely ignoring that the Miller test explicitly involves the community.
Community standards are determined by calling people in your community and asking them what they find exceptable - which is more than you might suspect.
My concern, like the author's is that this is a high priority for the AG. I also wonder about charging someone on a federal level, when it seems to me that it should be left to local law enforcement where the content is produced.
Well, technically speaking, in the federal court system, a judge CAN impose the defendant's legal fees for an obviously frivolous action.
See Federal Rules of Civil Procedure, specifically Rule 11(b)(2), which specifies that claims must be based in law or in a nonfrivolous extension of law. Rule 11(c) covers possible sanctions.
Now, Rule 11 isn't designed as a cost shifting device (this is an actual quote from memory, but I can't remember the actual case), but will be used as one in obviously frivolous cases. Read all of Rule 11, which has to do with proper representation of a claim. FRCP can be found here: http://classaction.findlaw.com/research/frcp.pdf
I'm a first year law student, so don't take my claims as actual legal advice!