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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.""
If this motion is not denied, regardless if he wins or not, at least this may make the extortion process a bit more expensiver per a person for RIAA, assuming this instills enough fear that they attempt to properly develop a case on a per-person basis. It maybe just whishful thinking on the other hand.
If this continues, we might start to see a rash of people defending themselves against lawsuits, rather than sticking to the time-tested system of out-of-court-settlements our nation is founded on. Who knows what effect that might have on our national justice system?
Correct me if I'm wrong, but isn't death a pre-req for becoming a martyr?
I've been wondering when someone would trade several hundred gigabytes of legit stuff from a monitored connection, just to set up the RIAA for a smackdown.
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.
Both sides in this equation (file uploaders and the RIAA) are in the wrong. You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily. Moreover, the RIAA is continuing to alienate its customer base by using heavy-handed tactics on fairly low-level criminals. In addition, by continuing to violate the law and thumbing their noses at the industry, the file sharers themselves are forcing the lawmakers into strengthening IP laws.
I do not blame this guy for fighting the lawsuit. It takes a lot more guts to stare down the RIAA than to give in and pay them their due. But by forcing the RIAA to be more thorough in the future means that future lawsuits won't get away so easily.
And since this is just a motion for dismissal and not an actual dismissal (who knows what judges will do?), the judge may decide that the RIAA has enough evidence to prove that this guy was a file sharer and toss out the dismissal.
Jesus saved me from my past. He can save you as well.
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?)
As a former federal practice attorney this motion is going nowhere.
Federal rules allow a plaintiff in a lawsuit to just give enough notice to the defendant so they have a clue; a small clue. Further procedures such as discovery, document requests and depositions are meant to bring out the specifics of how and why. Federal Judges allow alot of leeway in these because that's what the case law lets them do. And, even if the defendants were to show that the plaintiff didn't provide them with enough notice 99 times out of 100 the Judge just rules that the plaintiff has to file a restated complaint with more information. (I have rarely heard of any case which was thrown out because of failure to plead.) Further, the cases these attorneys rely upon are mainly just district court opinions which are presuasive but not necessarily binding. The two appeals court cases they do rely on don't really help--one is out of the appellate circuit which does not make it binding and the other in circuit is just a general clarfication. This is nothing but a drive by the defendants attorneys to rack up billing hours or gain media attention.
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Technically, to be a martyr, he'd have to lose. Otherwise he's a hero, which is just about as good. :)
At last, finally, it comes down to "show me when and where and how they broke the law" instead of OMG, they have P2P software, they must have broken the law. Maybe the wildfires in CA are because of their exploitation of the world in general? Well, maybe not, but its about time someone made them prove illegal file sharing actually took place.
My opinion? The Internet is so big, so anonymous, so unstoppable... to try to stop it is just ignorant. Litigation in these cases is so much like trying to stop the tide from coming in with buckets. Get over it, your business model is gone... nobody likes you... start selling your product with at least 20th century means. Joining the 21st century would be better.
When will the world learn that TCP/IP and the Internet are far more than they know how to deal with?
It gives me more glee to see the *AA in a bit of trouble than it does to see MS losing ground in their marketplace...... I don't even care how much trouble, the fact that they have to prove something is just a very good thing. and it is about time.
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It looks like what the RIAA provided was just a list of file names that the defendant had available for downloading. However, this does not show that any files ever were actually transfered.
According to TFA, prior cases have shown that for a copyright to be infringed, a specific instance (or instances) of infringement must be shown. For example: "On the [day] of [month] at [time], the file [filename] was transfered from [defendant] to [recipient] by means of [transport medium]. The file in question is [of some relation] to our copyrighted work: [copyrighted work with copyright information]. At least, that's my take on it. (IANAL)
Please ignore any obvious problems in this post.
In long past, yes I believe so.
I don't think death would require status as a martyr in todays age.
If they are fined and so heavily burdened to the point of "cruel and unussual"
punishment for something petty dumb and stupid according to a absurd ruling
it could work. But only if the public at large left and right are condeming
the bought finding and those behind it and calling for people to "swing."
It depends on the laws covering indictments in that State. There is an old lawyer saying that "You can get a Grand Jury to indict a ham sandwich" which means the prosecutor gets a lot of leeway at that level and does not have to be specific. However, at the real trial there generally needs to be a lot of SPECIFIC evidence to convict. If it is a criminal offense evidence must be "beyond a shadow of a doubt", civil cases just need to be "preponderance of evidence". And then again juries are funky, they can convict or set free based on how thier perceive the defendant and the prosecutor. OJ got off but Scott Peterson got nailed. Neither case really had a lot of evidence that directly proved murder. This case could also end up settling out of court, unless those who are being sued have deep pockets or a pro bono [no charge] lawyer. The RIAA or defendant can always subpoena the logs from the IP provider (assuming they kept any) that should settle a lot of things. If the RIAA has logs they have to turn them over to the defense as per the Rules of Evidence.
I've heard that they give defendants a list of files...but how do they know the contents of these files? If I upload something called yesterday.mp3 how do they know it isn't a recording of me singing the song?
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 RIAA won't care if someone wins a dismissal. The defendant had to pay for a lawyer and spend time fighting the case. As long as they sell the tech community on the idea that infringement will cost you something if you refuse to settle they still win, at least idealogically.
It's true no man is an island, but if you take a bunch of dead guys and tie 'em together, they make a good raft.
While that may be the most probable path to martyrdom, there are alternatives:
For instance, the defendent in this case could forgo a traditional, or "rational", defense, and instead commit ritual seppukku on the steps of the courthouse. The effects could be wide ranging:
- The judge decides the case in favor of the defendent (he was so moved by the ritual sacrifice)
- The RIAA renounces its single-minded persuit of wealth (because the defendent reminded them how fragile life is) and the record companies go back to advancing music as an art form.
- Ritual suicide becomes an acceptable means of getting almost anything you want (post-humonously, obviously)
- We get to download tons of w4r3z!!!
Let's try not to be narrowminded about this.
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
It's about getting the word out to (a) other lawyers and (b) other filesharing lawsuit victims, that there are things they can do.
The RIAA is organized. All of its cases nationwide are handled by a single firm located in Kansas City, Missouri.
The people it is suing, and their lawyers, are scattered all over, and until my blog haven't had a way of getting centralized information to each other, or even of knowing of each other's existence.
If you think lawyers can get rich representing kids with file sharing accounts, or their moms, you are sadly mistaken.
I agree with you that getting victories (or sustaining defeats) will be the most important news, but until now there have been almost no contested cases, so there have been almost no victories or defeats, only giving up.
In that kind of world, the fact that people are fighting back -- and what they are fighting with -- does happen to be news.
Your statement that the motion "is not going to withstand the scrutiny of the courts" is curious, to say the least. I wonder what knowledge of copyright law you have, superior to that of the courts which we cited, that you are basing that on. In the Santangelo case the RIAA's 500+ lawyer firm could not find any authority that contradicted the arguments we have made. Interesting that you can.
Ray Beckerman +5 Insightful
What exactly does the copyright cover on a musical work ? The notes, the chords ? The lyrics ? a likeness to a song ?
Is the copyright for the entire piece ?
If I downsample something to a 4 bit audio sample, is it a violation of copyright ?
If I get some shitty song stuck in my head and keep singing it, is it copy right infringement ? What if I tape myself ? And Distribute the tapes ? For a fee ?
If I translate a copywritten text to heiroglyphs, poorly, is it still compyright infringment, or just a story with the same plot and same basic them ?
When does something stop being copyright infringment and become something else ?
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.
In which case no law has been broken. That copy was perfectly legal, since it was the RIAA doing it!
Now that they have a file from you, they analyze it. There is digital information in the file that proves that it has been transfered over the internet and how many times.
No there isn't.
So....... you got it from the internet and you made it available through the internet to anyone who wanted it, and THEY CAN PROVE IT.
No, I got it from somewhere, who knows where, and I made it available to only the RIAA themselves as far as they can prove. And making music available to the RIAA, I strongly suspect, is not illegal in any way - how am I infringing copyright if I allow the copyright owner himself to copy my music collection?
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