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RIAA Complaint Dismissed as "Boilerplate"
NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's 'boilerplate' complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case (Elektra v. Barker) for guidance, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California. The decision handed down denied a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that 'Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation.'"
Uhhh, since when is music "one of the largest sectors of industry"?
Total music industry revenue is about $40 billion worldwide, and about $12 billion in the United States, per year.
The GDP of the United States is $13.13 trillion, per year.
Compare this to "self storage" companies which make about $22.6 billion, per year.
Companies that supply lock up garages for people who own too much crap make almost twice as much per year as the music industry.
How we know is more important than what we know.
The suit to follow is Tanya Andersen's. She has initiated a class action suit on behalf of all innocent people who have been harassed and bullied by RIAA lawyers. In Andersen v. Atlantic, the RIAA will have to defend itself against charges of malicious prosecution, and her case looks like a winner.
No no no no no! Plaintiffs should not have a "plausibility" requirement based on facts presented in the complaint. They are required to present a plausible case if they wish to win, of course, but the facts of the case should be presented after the discovery phase of the lawsuit, during which time they are able to use certain legal tools to aid them in finding the exact facts and natures of the violations.
Requiring the specific facts that make a "plausible" claim upon which relief may be granted to be present in a pleading has NEVER been required until Bell Atlantic v. Twombly was decided by the Supreme Court a few months ago. While the outcome in this particular situation (stopping the RIAA from making a likely frivolous claim) may been seen as a good thing, it is relying on a decision that overthrew decades of legal precedent designed to make sure everyone has their day in court, and had a fair shot at proving their claim.
The Federal Rules of Civil Procedure specifically state that boilerplate complaints are valid. They even PROVIDE THE FORMS for crying out loud. If the RIAA has no case, it should be determined by summary judgment, AFTER DISCOVERY, not by dismissal because plaintiff hasn't presented a plausible case. That is what discovery is supposed to be for, especially in this type of case, where defendant has control of the evidence that may prove their violation, and certainly wouldn't surrender it without a court order.
The Bell Atlantic decision is a broken abortion of justice, and this case is relying on its bad law.
OK, that was a bit melodramatic. But you get the gist.
I wouldn't get too enthusiastic about this being a way out from under these lawsuits. It's a good win, but it's on very technical grounds and easy for the RIAA to deal with if they have even a shred of a tenuous case.
It's mainly about the technical requirements for a filing. Let's take the hypothetical case of me suing you for having stolen a car from my car lot. All I state in my complaint is that on information and belief I think you stole a car from me, and I attach a long list of cars (make, model, VIN, plate number, etc.). The problems with this complaint at this level are:
- I haven't specified a crime. I've made an accusation, but where in there do I say what car was stolen, when it was stolen or where it was stolen from? Essentially the complaint can't say "You stole a car." but has to say "You stole this car.". And what's that list? I never say in the complaint whether it's a list of cars I allege you stole, a list of all the cars I have of which the one you stole is one. It could even be a list of all the cars left on my lot after the theft. Without some mention of what the list is, it's meaningless.
- Even assuming the above is corrected, there are no facts alleged connecting you to the incident. The bar here is low. I don't have to offer enough to prove my case. I don't have to offer anything credible enough to survive even a cursory response from you. But I have to offer some speck of evidence that, if believed completely and not responded to at all by you, could possibly be grounds for finding in my favor.
That's basically what the judge found here: the RIAA had failed on those two points. The bad news is that it's fairly easy for the RIAA to fix this. Name a song, name a file on the list that contained it, and allege that you were offering it for download to them and the first part's dealt with. As for the second, alleging the files were offered by a particular IP address along with a statement by the ISP that that IP address was assigned to a particular person's account at the time in question suffices. There's lots of technical problems with it, but it meets the minimal bar involved. The good news is that even those minor fixes give the defendant more places to attack the RIAA's complaint. For instance, if they allege a particular file contains some specific song, the defendant can respond by asserting that that file contains something that'd justify it's name but isn't the song in question.I suspect the RIAA got tripped up here because they never intended these cases to go to court. The filings were supposed to be merely clubs to wave at people to get them to settle, they were never supposed to actually be looked at as real lawsuits. We're going to see a lot of these for a while, but we're going to see a second round from the RIAA with these sorts of obvious errors fixed as they react to people actually fighting back. I'm not a lawyer, but I think one piece of advice is warranted: don't pick questionable defendants to fight this second wave. Pick ones that really are clean and can prove it and fight the RIAA on those. It's much easier to win judges over when you can present solid evidence in your favor, and much easier to fight the questionable defendants when you've got previous clean wins to cite.
Indeed, they should listen to the Patrician and realise that instead of fighting, they should accept a smaller slice but enlarge the pie. There would be lots of $$ to be made if they looked to the future rather than the past.
Between the falling angel and the rising ape
-only about 20% of the cases result in settlements, and
the RIAA is losing millions of dollars on the litigations.
They make money on quick settlements; they lose money on default judgments; they lose a lot of money on cases that litigate for awhile and then settle; and they lose a fortune on cases where the defendant fights back.
Ray Beckerman +5 Insightful
Many people disagree with your judgment on morality and justice. In fact we Canadians have made it perfectly legal to make private copies of music for personal use, no questions asked. Just borrow your friend's CD and rip it to your heart's content, my Sony PS3 even does it for me.
We also allow private copying *and* unmodified redistribution of anything broadcast over public airwaves.
Just because these companies have spent so much money convincing you what you're doing is wrong does not mean it is in fact wrong, just that you've drank the kool-aid.
- Michael T. Babcock (Yes, I blog)
There are plenty of ways. We just need to use them.
However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works
Speaking as a lawyer who has used that term in complaints: anytime you see the words "upon information and belief", that means "ummm...theoretically this might have maybe could have happened".
And that $12 billion is more like $10 billion, but even then that's only how much it would have been if everyone had paid the "manufacturer's suggested retail price". Reality is closer to $6 billion.
For only a couple of dollars, it is possible to review the current case information using the PACER electronic file access system. Interscope Record, et al., filed an amended complaint on August 23, 2007. The amended complaint goes beyond stating that the plaintiffs were "informed and believe that the Defendant" pirated their works:
The plaintiffs had to serve the the defendant again (by mail), but was otherwise not inconvenienced in this suit. Denying a motion to enter default judgment is not the same as dismissing the case altogether. The order even said that the plaintiffs were granted leave to amend the complaint.
The Recording Industry vs The People blog makes too big a deal about the RIAA not disclosing the Interscope order in another case. This was a trial-level order. It doesn't create an interpretation of law that is binding on any other court (if even itself). Law briefs are already long enough without having to cite thousands (if not millions) of trial-level non-binding orders and decisions that show that other trial-judges might decide against the argument.
Of course, today we have the aforementioned stereotype of the Starving Artist, evidence that the status of the artist is much lower than it was in the Renaissance, and probably lower than it was in the Middle Ages as well. But it wasn't always this way.
Interestingly enough, the sunset of the High Renaissance also saw the birth of the first copyright laws...suppose there's some sort of correlation?