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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?)
People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations
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
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
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.