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Does the RIAA Fear Counterclaims?
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
I'm still trying to work out the story here. The submission appears to be saying that the RIAA doesn't like being countersued. Which presumably means that most people who sue actually love being countersued, or at least don't mind. Or perhaps the submitter thinks that people generally aren't aware of the fact that those who sue don't like being countersued.
Either way, this actually seems, well, blindingly obvious to me.
Perhaps it's the submitter that's surprised (in which case why did the editor post it? I mean, if I submit "Would you believe it? I just found the way to compile a Java class is with "javac". Wow!", I'm pretty sure it wouldn't get posted.
If the submitter really is a lawyer, rather than a shill for the RIAA who's trying to make all those in favour of meaningful copyright reform look like freeloader-apologists, then this story is yet another good reason why I wouldn't ever hire the guy.
I've tagged this "FUD" (because it tries to sow uncertainty, fear, and doubt, by using negative language to make the usual look unusual), "troll" (because I'm more and more convinced that's what this guy is. How can you not read the submission and want to flame the hell out of it?), and "blindinglyobvious", because, well, it's that.
You are not alone. This is not normal. None of this is normal.
i eagerly await someone, lawyer or not, who is willing to explain this in plain english - i read a bunch of the links and i still don't understand it.
It's hard to believe that's how Micronians are made. Why don't we see it right now by having you both kiss one another?
My "single-mom with multiple sclerosis" beats your "starving artists".
If they just stuck with a straightforward legal approach, they might fare better. ie. Just because you're a single mom with multiple sclerosis does not give you a right to steal music/software any more than it gives you a right to deal drugs.
Engineering is the art of compromise.
I think this is exactly what's going on. The RIAA is worried that they'll get locked into mutual litigation. Once that happens, if defendants win, they start stacking up precedents, both binding and persuasive. More importantly, the media publishes every single story where the defendant not only got sued by the bloodthirsty RIAA, but "Look, they won, so they must've been right, and the RIAA must've been wrong!" Suddenly everyone starts asking how many of these lawsuits are actually valid.
However, the original poster seems to be spinning this. Take whatever I say with a grain of salt because I'm only a first-year law student, but a 12(b)(6) objection is not merely technical. It's the most basic defense in federal Court to frivolous claims. If I give you a dirty look, for example, that's not nice, but it's not a crime or even an offense for which you can sue. I don't know the case law on point and (again) I'm only a first-year, but it doesn't look like this clause of the Copyright Act is something for which you can directly sue. It looks like exactly what the RIAA says it is...a cost-shifting provision the Court may impose as part of a final decision. If the defendant really thinks the RIAA is making a frivolous claim, they shouldn't be filing a counterclaim, they should be filing a Rule 11 motion, which allows the Court to punish frivolous claims.
However, I can understand why they're reluctant to do this. Some commentaries believe Rule 11 has been eviscerated over the years. In its current form, it allows the party being accused under it to simply withdraw the claim, motion, etc. within a specified safe harbor period and face no repercussions. It's supposed to encourage more civilized litigation, open discourse between the parties, etc., but some think it's swung too far in the direction of letting people throw out whatever ridiculous thing they want. Again, my analysis of the whole thing may be way off, but I hope it's not (or my civ pro grades may not be as good as I hope they will be.) Hope it helps.
I appreciate NewYorkCountryLawyer's insight into many of the legal issues discussed here, but the summary seems misdirected.
The summary describes a "case against a woman with Multiple Sclerosis," and the lede of the P2PNet article is, "RaeJ Schwartz is a mother in Queen's [sic], New York, who's been seriously disabled by multiple sclerosis, a chronic, crippling disease of the central nervous system." Neither makes any further mention of her disease or disability, or any mention of how either affects the case, so we're left to guess: Is the implication that the RIAA is particularly unscrupulous for bringing a suit against someone with a severe medical condition, and that it should hence be additionally vilified accordingly? This leaves unanswered the basic question of why her disease should affect our analysis of the situation. My best guess: MS can severely limit mobility, so the implication is that her disease prevented her from downloading. (How likely is this? I'm ignorant of the practical specifics of the disease.) If this is the implication, it should have been included in the summary.
Instead of name-dropping her disability and saying no more, the summary ought to have included something more relevant, like "a case against a woman who has a severe medical condition preventing her from conventional computer use" or "a case against a woman who likely never downloaded any music" (as was suggested in the P2PNet article, though this would deserve more explanation, too).
.... Fears anything that will stop their monopolization of the music industry.
This is my opinion. To make sure you don't steal it, it's covered by the DMCA.
so if the kid steals a CD the parents can be forced to pay, but sharing a song means the parents are not liable?
I'm sure a great many individuals (including lawmaker types) consider both to be theft...
I'm trying but failing to visualize a situation where parents would be financially responsible for theft, and it's not a civil matter.
every day http://en.wikipedia.org/wiki/Special:Random
Thank you for sticking up for me. You are right about my reasoning, and I guess I'm a little impatient with someone who does 5 minutes of research and thinks he's on to something, and is challenging me to "rebut" him. It seems disrespectful, to my way of thinking. I wouldn't do 5 minutes of research on quantum physics and then challenge someone who's been a quantum physicist all his life. I'd wait until I'd put in 5 or 10 years myself, and had some basis for what I was talking about.
That being said, I shouldn't have been so curt with him, but should have answered his question... not so much for his sake, but for the sake of other Slashdot readers.
Ray Beckerman +5 Insightful
Nn no, he is welcome, now we can lose all those posts that start with 'IANAL but'.