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.'"

Comments

magine that riaa

[circletimessquare]

you can't change reality with a lawsuit

reality: your business model is history

think up a new business model, and stop trying to prop up the dead one with the court system

a new business model means less money? too bad. the golden age is over. fucking deal with it and stop sending your barking dogs to terrorize little people in your rage and frustration and denial

Re:magine that riaa

[click2005]

a new business model means less money? too bad. the golden age is over.

Quite a few studies have shown that new business models would earn them even more money. It seems more that they aren't content with a slice of pie, they want it all. The notion of IP (intellectual property) has given them the excuse to try to get everything they can, even when things such as fair use and respecting your customers get in the way.

Re:magine that riaa

[adona1]

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.

Are these people morons?

[lawpoop]

What is the deal with this RIAA/MPAA situation? Are these organizations run by total morons? I'm not trolling, but it seems like they aren't putting one iota of serious effort into this. Are they so cynical, moneyed, and jaded, that they think nothing of suing mothers and teenagers apparently just for the hell of it? How can they do such a lousy effort this yet be one of the largest sectors of industry?

The longer I live, the more I am in a state of sheer awe that society doesn't come apart like Britney Spears fan on youtube.

Re:Are these people morons?

[ackthpt]

How can they do such a lousy effort this yet be one of the largest sectors of industry?

Perhaps they're more accustomed to people just rolling over with a chilling effects letter. Plenty of hard work keeps things finely tuned, it's evident that there have been a lot of legal people collecting retainer fees who have spent very little time practicing. Seriously, this is pretty amaturish.

Re:Are these people morons?

[Atario]

It's the same reason people continue to spam.

Even if it only works a vanishingly small percentage of the time, applying a tiny effort to loads of people still results in a net gain.

(Except, of course, when you factor in the damage to reputation, but that never stopped the unscrupulous before...)

Re:Are these people morons?

[StikyPad]

Well that's their theory anyway. Whether it is borne out in practice remains to be seen. Clearly it works for SPAM, but these lawsuits clearly cost more to implement than the plaintiffs are receiving in awards. Their hope rests solely on recouping their costs through deterrence, although it's unclear that a decrease in piracy would equate to an increase in sales, so their reasoning may be somewhat flawed.

Re:Are these people morons?

[QuantumG]

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.

Re:Are these people morons?

[JoelKatz]

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.

Re:Are these people morons?

[NewYorkCountryLawyer]

It's not clear that it is unprofitable. There's only a few boilerplate letters per "lawsuit", and most are settled at $3000 or so. That's a heck of a lot of money for a mailing few letters. Actually, Eivind,

-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.

Re:Are these people morons?

[NewYorkCountryLawyer]

Ah, cool, I'm glad to hear that. Thanks! (And thanks for the work you do around this; even though it isn't in my country, it is appreciated.) Thanks for your kind words, Eivind.

I hope your country remains free of this plague, but I will tell you it's an international thing.... they're certainly persecuting people throughout Europe, except for the Netherlands, where the courts astutely saw through their scam from the outset.

Re:Are these people morons?

[NewYorkCountryLawyer]

I think a more likely explanation is that you're simply not privy to their actual strategy. Just because you don't understand it doesn't mean it doesn't make sense. Consider the evidence. The RIAA/MPAA have access to the finest legal minds money can buy, and have spent years of time and millions of dollars on this issue. You are likely not a lawyer, and likely have not spent years or any money at all on this issue. Is it more likely that you, in your brilliance, have seen something they have not, or is it more likely that you just don't know what they're doing? Clearly, it must serve some purpose which they deem worthy of the effort spent on this project. Assume they are fools at your own peril. I have nothing against your personally, but many people share your view. It assumes that the RIAA is run by idiots, and this is unlikely. I think the RIAA/MPAA need to be destroyed, but we will almost certainly fail in this task if we continue to underestimate their intelligence. Conceptually it's helpful to seperate the record companies themselves from the lawyers.

The lawyers here are in the business of making money by doing legal work; the more hours they put in, the more they get paid. Clearly, the lawyers are -- from a business standpoint -- pretty smart. They are getting paid a lot for accomplishing nothing, and for actually causing their clients more harm than good.

The record companies, on the other hand, are in the business of selling music, building brands, creating goodwill among customers, bringing their product out through new technologies, and they're supposed to bring in more money than they spend. Clearly, the record companies are -- from a business standpoint -- pretty dumb.

The lawyers are smart businessmen; the record companies are, at least for the moment, being run by dumb businessmen.

As to having "access to the finest legal minds money can buy", yes they have "access" to the finest legal minds. But if you think they have the "finest legal minds" working with them..... as someone who has worked with and against some of the finest legal minds in our country, I beg to differ with you there. The "finest legal minds" would not even stoop to do the kind of garbage work these folks are doing.

Re:Are these people morons?

[Magada]

The entertainment industry wields a vast amount of power considering how tiny they actually are. Astute observation. Two things are at the root of this:

1. the Holywood complex is made up of people who influence _other people_ for a living. That tends to keep the necessary skills sharp. On the contrary, the software industry makes money convincing _bits of silicon_ to do their bidding, which reflects in their (sorely lacking) marketing/PR/lobbying skills. Even among the successful software players a ham-handed, resource-intensive (read SPAM-ish) approach to public relations is all too common.
2. The Mafia. It wields a vast amount of power and is, for historical and practical reasons, wedded inextricably to Hollywood.

Look at the size of the computer industry, or just the home electronics industry, both orders of magnitude larger, yet they allow themselves to be pushed around by the "content providers". The meme "content producers are pushing around the software industry" is naught but unmitigated bull, pandered by Microsoft in an attempt to veil their attempts at becoming gatekeepers for all media (DRM, TPM, whatever). Apple is trying the same, and failing, but at least they do not misrepresent their intentions.

Media-player hardware producers (Sony and their ilk), otoh, _are_ gatekeepers to media already. The push for DRM is largely theirs, as they do not want to lose that position.

No facts? Exactly

[Bonewalker]

"Plaintiffs have presented no facts." This is exactly right, and can likely be far more broadly applied than just this case. I think the best argument most folks have is that it is very hard to tie an IP address to a specific user. And they think that just because they provide a screenshot with a list of songs on it that that is damning evidence. Hooray for this judge who has seen through the rhetoric.

My thoughts

[Spy der Mann]

Screenshot? could be photoshopped.
Text Log? could be edited.

If instead of that, you have a text log, verified by the ISP and with a signed statement asserting that this text log effectively shows that the given binary conversation took place at the given time, and that the receiving end has a given MAC address, and if that MAC address can be certainly confirmed as belonging to the accused, now THAT's a completely different story.

Different day, same old stuff

[Whuffo]

The members of the RIAA have been enriching themselves as (essentially) statutory middlemen. For decades, any music you listened to came to you through their distribution system; there was no other option.

This internet thing blows their monopoly apart - there's a new method of distribution that's cheaper, faster, and out of the control of the music companies. This presents a problem to them: their "money for nothing" gravy train is threatened. It's no surprise that they're using every tool they can to stop reality from sending them to the realm of the irrelevant.

But since they haven't worked for their money for years, when it comes to taking legal action they don't seem to be willing to put forth an effort there either. This latest decision is an interesting one; significant enough by itself, but it'll cause some big changes for a lot of people...

Unfair time-travel tacticts

[saveourskyline]

FTA:

II. BACKGROUND

Plaintiffs filed a complaint against Defendant on November 14, 2007, alleging copyright infringement. According to the complaint, Defendant used and continued to use an online media distribution system...

The RIAA is using time machines now to go forward in time and file complaints in the future? Now that's just not fair...

Confessions of a convert

[gillbates]

They call themselves the RIAA, but really, they represent companies like Sony, UMG, Time-Warner, etc... The RIAA moniker is used to keep their activities from reflecting poorly on the sponsoring companies.

You know what's interesting? When I was younger, I had heard things about pop music being evil, then rock music being evil, and certainly, gangsta rap was evil. I just kind of dismissed them, thinking, how could listening to music be evil?

Turns out, I was asking the wrong question. The problem wasn't in listening to the music, so much as it was that my paying for music was funding evil things, directly and indirectly. Sure, rappers talking about killing cops isn't a good thing, but it wasn't as nearly as bad as what music purchasers were doing by feeding the record companies:

• I didn't think about it at the time, but the record companies indirectly supported things like drug addiction, misogynism, and even satanism through the bands they promoted.
• I didn't know that I was financing the exploitation of musicians. It wouldn't be until years later that I would learn that record company contracts often leave the band in debt to the record company, as the record company makes record revenues off the music.
• I didn't know that the money I used to buy CD's would later be used to sue single mothers and teenagers.

I can't remember the last time I bought a CD. In fact, I'm probably one of those lost sales the RIAA blames on piracy. The thought that someone might not buy their music because they object to their lack of morality and common decency doesn't even occur to them. They think everyone else is just like them - greedy, money grubbers who can't stand the notion of actually paying for music. (After all, the RIAA member companies do their best to avoid paying the musicians).

You don't need to explain why you don't patronize the RIAA member companies like Sony, etc... Instead, ask the question, "What good has the RIAA done for music, musicians, and society in general?"

The silence will be deafening.

Re:Confessions of a convert

[lawpoop]

Well, I hate to break it to you, but artists really don't make a living. Be it music, painting, theater, acrobatics; it doesn't matter. You just can't do enough to make ends meet. That's why we have the term 'starving artist'.

Any ideas? Without the artists being able to make a living, we'll end up with no dedicated artists at all. If you want dedicated artists, you'll either have to have the state pay for it ( good luck selling that in America ) , or have sponsorships of wealthy patrons and corporations ( selling out, anyone? ). All of the classical music that we get from the middle ages was paid for by the sponsorship of a wealthy patron or financed by the church ( which is why so much is religious ). Folk songs are songs that people sang when the got done working in the fields. The troubadour of medieval Europe was a combination musician, storyteller, and message- and news-carrier -- and also a wandering, starving vagabond. Your local opera, dance ensemble, or theater group exists on government grants, wealthy donors, and perhaps a trust fund. Art is not something that puts food in your mouth. It's something you do after you've put food in your mouth, in order to give your life meaning and a reason to get up in the morning.

The ability to make a living as a musician in the past 100 years has depended on the difficulty of production and distribution of music recordings, and the willingness of the artists to go on tour. Needless to say, the record companies raked in the lion's share of the proceeds, leaving the recording, performing musician mostly broke. A few people became super stars, which a few generations of suckers for the record labels to exploit, preying on their hopes of becoming famous and rich. Few people became famous; even less became rich. And those that did become rich made their money from performing; record sales, not so much.

Now we have come full circle: music recording and distribution has become so cheap, you don't have that revenue stream available anymore. Musicians who do make a living as musicians will do so by going around performing, just as they did before the 20th century. And the idea that musicians were actually able to make a decent living as recording artists during the 20th century is really a myth -- successful musicians, even those who sold lots of albums, made their money from touring. The record companies took most of the profits from record sales. Sure there were a number of popular musicians, but there were many more who never made any money off of it.

Most people with a Masters of Fine Arts who actually still paint ( and I know a few of them ) have a day job. A few of them are lucky enough to teach college kids to paint. The rest sell weed and/or are starving.

So, being a full time artist is a pipe dream for many people. It many sound like a downer, but I look at it the other way -- for human history, art has always been a folk expression. People got together in the village after they were done in the fields and danced and sang. Simple as that. Your brother will have a hard time making a living solely as an artist, but he can get a 9-to-5 and perform at some bars a few nights a week, release an album every few years, and have a damn lot of fun doing it, all without starving ;)

Re:Copyright infringement penalties are excessive!

[RockModeNick]

I've always found that argument silly, let me tell you, if a girl is a wonder in the sack, even if she's not particularly great looking and comes with baggage, she can sure lure me into a relationship by giving me some free milk.

ha

[nomadic]

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".

Re:Don't get too enthusiastic

[NewYorkCountryLawyer]

Perhaps you can explain why they aren't using (and I hear dropping) the "made available" argument. I have a selfish interest as the Canada's Parliament keeps suggesting they will pass legislation implementing the "make available" sections of WIPO. BTW, really, thank you for these articles and posts. I always read NewYorkCountrylawyer posts/articles first! You're good.

I guess you read Canada's own p2pnet.net by Jon Newton.

Actually, I can only speculate what is going on in RIAA-land.

All I know is that, in the wake of the Interscope v. Rodriguez decision, which forced them to come up with an amended complaint, they filed an amended complaint which totally omitted the "making available" theory.

I'll be doing a post on the possible implications of this, but as to their reason, my guess is they did it because

1. they know that it's an invalid argument, having no basis in the statute, in caselaw, or in legal scholarship, and

2. the Bell Atlantic v. Twombly decision gives them a way to back down gracefully.

Crystal clear

[Stanislav_J]

This situation, more than any so far, blatantly exposes the true motives of the RIAA. They never intended for any of these cases to actually go to trial. The whole effort is a shakedown, a scare tactic to quickly extort some cash through intimidation and fear and hopefully provide a deterrent to others not to infringe. If they wanted to, they could build more solid cases with more convincing evidence, but that would take far more time, effort, and expense than they are willing to put into it. Believe it or not, their legal eagles are probably involved in far weightier and more important matters than suing a handful of file sharers. To build a case that will hold up in court for each and every one of these people would be extremely cost-ineffective.

To me, this is very much like credit card companies or other creditors who threaten to sue for collection of very small debts. They don't want to actually go to court to get that couple of thousand bucks you owe -- they know that the expenses of doing so would far outweigh the debt. (And getting a judgement is one thing -- actually collecting the money is another.) They merely hope that having a deputy show up at your front door with some scary looking legal papers in hand will be intimidating enough to motivate you to somehow scrape up some dough to settle the case.