RIAA Defendant Moves For Summary Judgment

NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."

Comments

About That Letter ..

[eldavojohn]

According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a sack of money to send the Judge asking the Judge not to allow her to make it.

There, fixed that for you. Actually, to be fair:

According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge reminding the Judge that he's bought and paid for just like the lawmakers and Judges up the rest of the chain.

More realistic although it's a shame this lower court Judge probably won't profit personally from the case unlike those installed into prestigious positions and those accepting lobbying money for their political campaigns.

Re:About That Letter ..

[anagama]

I don't really understand the "letter to the judge" part. Absent an issue with a party abusing motion practice, any motion should be considered and nobody has a right to say a party can't file a motion. The other party is totally free to argue that the motion is bogus of course, and if the motion is defective for procedural reasons, it can be denied on that basis. Nothing is stopping the RIAA from filing a response saying the motion should be denied, and I suppose the letter could be considered an informal response, but if it isn't shared with the other party, then it is unethical and improper communication with a judge.

I wish we had more info on what this "letter to the judge" thing means.

Re:About That Letter ..

[NewYorkCountryLawyer]

I wish we had more info on what this "letter to the judge" thing means.

1. A summary judgment motion "searches the record", which means that the Court can grant summary judgment motion AGAINST the party making the motion. I.e., the judge is supposed to search all of the papers, both for and against, and if the moving party's case should be thrown out, the Court should throw the case out.

2. Sometimes, when a party opposing summary judgment feels the other side's case should be thrown out altogether, the party also files a "notice of cross-motion", sometimes he or she doesn't bother.

3. In this case there had been an agreed extension of the time to file "opposition papers".

4. When the RIAA saw that the opposition papers contained a "notice of cross-motion" they complained, saying that the extension of time did not apply to any "cross-motions", and said they would write to the Judge asking her not to consider the "cross-motion".

5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

Zombie Movie

[Jane Q. Public]

This reminds me so much of a zombie movie... where somebody has cut off the zombie's head, but it doesn't know it's dead yet, and stumbles around causing damage and killing people for a couple of years before it falls over for good.

I will be soooo happy when the RIAA finally realizes it's dead.

Re:Zombie Movie

[thej1nx]

In a way, RIAA is indeed an undead zombie.

Pardon me, but isn't traditional purpose of so-called zombies is supposed to obey the orders and act as a proxy of the person who raised them?

RIAA is just a bogeyman. A shadow puppet. It is the *media companies* that are suing you. It is *media companies* like Sony, Warner Bros. etc. which are harassing their own consumers. I am not aware of "RIAA" producing any songs.

Sony would not like the negative publicity of being caught suing a 84 year old grandmother. So it banded up with other companies to make a dummy face which people can hate, instead of sony itself or other such companies. Corporations hate the negative publicity. That is the only place where we can hurt them. And when you hate/attack the puppet instead of its master, you are being just the dumb person Sony and its ilk assumed you to be, and playing their game their way.

You want RIAA to die? Stop naming RIAA in these stories as the suing party. It is not that tough to find out which company in the cabal is alleging the piracy. Name *them* when you report the stories of blind homeless veteran being sued by them.

If someone sues you with malice, should you hate the lawyer they have hired, or the guy who is actually suing you and paying the lawyer to make your life hell?

Sony and its pals do these stunts because they know you will hate the "RIAA" instead of them, and they will get to keep their rosy image and be safe from any direct public-backlash. Change the rules, and attack the voodoo witchdoctor. And then see the zombies die.

Re:Zombie Movie

[guruevi]

It's already being done the way you descibe. Read any of these cases:

Lava Records v. Amurao
Capitol v. Thomas
UMG v. Lindor
Atlantic Recording v. Brennan

The RIAA is just a consortium where those big labels have deposited and combined their moneys in order to eradicate this internet thingy once and for all. The RIAA just hires a bunch of lawyers to do it and shares the information among the parties. From a laymen's perspective: it's kinda like several mob bosses outsourcing their harassing/collecting to the same company. From a legal/business perspective: It's the colluding of several large businesses in order to secure their respective monopolies and keep other smaller players away from the market. The RIAA also does other things besides lawyering like fixing prices between those large businesses - legally those businesses can't collude to fix the prices on their products (they offer products to both the artists and the artists' customers). They just all happen to have the same 'market research' agency that advices them a certain price point and specific contract outlines.

The RIAA needs to be disbanded and all of the assets returned to their owners (after the victims have been repaid) and then let each of them fight their own fights - let the recording agencies fight between each other for artists and let the market decide who to give the most business.

Re:Zombie Movie

[guruevi]

They are immune from RICO because they are not the recording companies themselves. The RIAA is similar to any consortium body like the ISO consortium or the Bluetooth consortium. It's just that their industry standard is to regulate prices and annoy/persecute their customers.

And that's CHANGE we can believe in!

[Anonymous Coward]

Won't Get Fooled Again

We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song

And the world looks just the same
And history ain't changed
'Cause the banners, they all flown in the last war

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
No, no!

I'll move myself and my family aside
If we happen to be left half alive
I'll get all my papers and smile at the sky
For I know that the hypnotized never lie

Do ya?

YAAAAAAAAAAAAAAAAAH!

There's nothing in the street
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Is now the parting on the right
And the beards have all grown longer overnight

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again
No, no!

YAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH!

Meet the new boss
Same as the old boss

Hope-n-change!

You Go Girl!

[electricprof]

Three cheers for the lady!

Prosecution

[BountyX]

At what point does the legal system itself become a tool for prosecution? Both the father and daughter are involved, despite the outcome, it basically amounts to harassment. Sad.

Re:Prosecution

[Tiberius_Fel]

I think you mean "persecution". I'm pretty sure the legal system is meant to be for prosecution.

Re:Prosecution

[CowboyBob500]

Exactly. What kind of dumb legal system allows a rich person to sue a poor person, then half-way through say, "Oops, didn't mean it", without having to cover the costs of the other party?

Re:Prosecution

[NewYorkCountryLawyer]

In Capitol Records v. Foster the court awarded $64,000 in attorneys fees against the RIAA, and in Atlantic Recording v. Andersen the court awarded $108,000.

Re:Prosecution

[KillerBob]

I think he actually means Malicious Prosecution, which is also already covered in the legal systems of most of the world....

Curious interpretation of "the public"

[superdana]

Not sure how I feel about this bit (emphasis in original):

The distribution right encompasses distribution to the public. But song files which reside on a computer hard drive are only accessible to someone else who has the same file-sharing software.

Maybe "the public" has some special meaning in Lawyer Town, but the fact that file-sharing software is required to access shared files doesn't convince me personally that the files aren't available to the public. It's not as though there is some privileged minority of people who have access to file-sharing software. Anyone can download it.

Re:Curious interpretation of "the public"

[NewYorkCountryLawyer]

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Re:Curious interpretation of "the public"

[Lloyd_Bryant]

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one?

Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents). That one would put an end to the whole RIAA campaign, if you can ever get the judiciary clued in...

Re:Curious interpretation of "the public"

[Grond]

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

But in fact your comment is only available on a limited network. Viewing your comment requires access to the internet, which is a subset of all networks (e.g., the old AOL network would not have sufficed, nor would a computer in North Korea, I'm guessing). Further, access must be through a system that allows HTTP traffic to and from Slashdot's servers, which is another subset (e.g., a work computer with strong filtering would not work). The client also has to have a web browser or other means of sending HTTP requests (e.g., limited cell phones would not work).

What viewing your comment does not require is a Slashdot membership or paying an access fee. Viewed this way, making files available on Kazaa, a bittorrent network, or the like is equally public. It only requires a general purpose internet connection and freely available software. It does not require a site membership or paying an access fee (members-only torrent networks excepted, of course, but I don't believe that's at issue here).

A better of definition of 'available to the public' is whether or not the party making the files available has taken any measures whatsoever to monitor, filter, or prevent access to the files according to some criteria set by the sharer. By default, most file sharing networks make files available to all comers, so long as they obey the protocol. The same is true of a public website like Slashdot (just try reading your comment by sending malformed HTTP requests; it won't work).

So, for example, if a file-sharer limits access to a whitelist of people known to the sharer (e.g., friends), that might be different, but again, I don't think that's the case here.

Re:Curious interpretation of "the public"

[Nefarious Wheel]

Assuming you have a web browser.

And also that the files are available without a private agreement. Having to log in means accepting the EULA and agreeing to be part of a private exchange. Trivial point, perhaps, but the difference between public and private is the difference between a public investigation and a private one. Private investigations are subject to specific laws concerning behavior.

Re:Curious interpretation of "the public"

[NewYorkCountryLawyer]

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one? Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents).

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.

You obviously don't know me. I only make arguments that "hold water". I'm just a country lawyer that wound up in a big city. I don't write the law. I report it.

Re:Curious interpretation of "the public"

[westlake]

The distribution right encompasses distribution to the public.

I can loan a DVD to a my neighbor. I can sell the disk or give it away.

What I can't do is scan it into the ultimate copy machine for the convenience of 15,000 of my closest friends on the P2P nets.

--- or the twelve on my Dark Net.

"Distribution to the Public" is a diversion, a red herring, and in NYCL's argument it has a particularly rancid smell.

     

Re:Curious interpretation of "the public"

[Lloyd_Bryant]

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network.

But is Gnutella a "limited network"? Any person who has
1) A computer
2) Access to the Internet
3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.)
has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.
(Whether the law does or not is, of course, another matter entirely)

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.

That was my main point. There are many different angle of attack on this problem:
1. No proof that anything was ever distributed to anyone other than MediaSentry
2. The fact that MediaSentry's methods are secret, and cannot be established as being reliable.
3. The fact that MediaSentry has extremely lax evidence handling procedures.
4. The fact that MediaSentry isn't licensed to perform investigations, though many states require this for collection of evidence to be used in a court of law.
5. The fact that their so called expert does little but regurgitate what MediaSentry tells him.
6. The fact that their expert has a vested financial interest in the success of the terror campaign.

Re:Curious interpretation of "the public"

[NewYorkCountryLawyer]

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.

NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter? Or does it only count if I allow my friend to scan copies of every page? Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on /. -- On the plus side, I can spout off plenty of bad analogies!

It's easy. You just go by what the book says. It says that for there to be a distribution there has to be
-a dissemination of copies
-to the public
-by sale, other transfer of ownership, rental, lease, or lending.

All of the above have to have occurred.

Since none of the above occurred, there is no distribution within the meaning of the Copyright Act.

Re:Curious interpretation of "the public"

[L4t3r4lu5]

I'm just a country lawyer that wound up in a big city.

Keanu?

Re:Curious interpretation of "the public"

[KillerBob]

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.

I think his point, though, is that while the distribution is limited to people who can connect to the Limewire network (Gnutella, IIRC), the network itself is available to the public. There's dozens of programs out there which can connect to the network, and the protocols which govern the network are well documented and freely available.

Yes, it's an added step you have to take in order to access the network, but it's by no means restricted or private.

Simply making a product available, however, isn't enough for a copyright infringement case to stick in some parts of the world. Up here in Canada, for example, they have to be able to show that either there's material gain on behalf of the person doing the distributing, or that that person or party is individually responsible for material loss on behalf of the infringed party. Neither would be possible to prove in court, as she does not get paid for files that get downloaded from her computer, and because of the way the network is designed, removing any single source from the network doesn't take the files off the network. She's not the only source, so she can't be individually responsible.

Even *if* they could prove that filesharing is responsible for the dropoff in sales that they're noticing, and not their business practices or their tendency towards signing cookie-cutter crap bands (I was looking through my record collection, and 99% of the bands I listen to these days are independant because they can't get a record company to take a risk by signing them), they still wouldn't be able to tie those losses to the individual person, because that person is not an integral part of the network. They'd have to go after the designers of the network itself, which is what they have been trying to do up here.

Now, I'm not a lawyer. I did pass my LSAT up here in Canada, but my degrees are in Philosophy and Linguistics, so take it with a grain of salt. And the personal attack was inappropriate... but hopefully this will shed some light on his point.

Re: Thanks NYCL

[jobsagoodun]

Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.

Re:Grandfather clause?

[Lloyd_Bryant]

The way I interpret this (although IANAL) is that if you're sharing a folder online, and they don't sue you within 3 years, you're pretty much home free? This could be really good news for people who share files. Especially since you could copy them to a computer not connected to the internet, wait 3 years, then release it to the wild.

IANAL either, but I believe you're confusing two points. There are two different rights given to copyright holders - the exclusive right to create copies, and the exclusive right to distribute them to others.

The section you're reading only applies to the former. So imagine the following: You download a bunch of songs from the 'net, and have them on your hard drive for more than 3 years. Then they discover that you have those infringing copies. The statute of limitation prevents them from suing you for having copied those songs without the rights holder's permission.

But, if you then distribute them to the public, a new infringement occurs (a violation of the exclusive right to distribute). The statute of limitations on *that* runs from the date of distribution, not the date of copying.

By Neruos

[Anonymous Coward]

They both will lose and the RIAA will win, this will continue until you get the government to cut its bond with the MPAA/RIAA and its unlawful backing of a capitalist consumer entertainment product via the FBI.

Re:"Not to allow her to make it"

[NewYorkCountryLawyer]

hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

Don't worry. There is no way on God's green earth that the judge would even consider precluding Ms. Amurao from making a cross-motion for summary judgment. That would be the most flagrant kind of appealable order. The RIAA lawyers' request that Ms. Amurao's cross-motion not be considered by the Court will be denied.

Re:Copyright term is now three years?

[NewYorkCountryLawyer]

This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.

It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

Re:"Not to allow her to make it"

[bushing]

get a LOAD of that BULLSHIT. what kind of twisted system is american legal system that, a judge can DENY a legal move by any of the parties. hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

The judge made a deadline for each lawyer to submit "motions" - letters that say "this case is invalid, because [xxx]". These letters are very common, since there isn't much to lose by trying.

The judge then extended that deadline to later. The defendant sent a letter to the judge objecting to the RIAA's motion, after the first deadline, before the second.

The RIAA then sent a third letter to the judge, pointing out to the judge that the second letter was "too late" (because it was after the first deadline). That's silly, because there was a second deadline, but that's all the letter was. The American legal system may be twisted in other ways, but this is just some asshole lawyer writing a letter to a judge to try to confuse them. There's no "evidence" being denied, and the judge will hopefully ignore the letter.

Re:Copyright term is now three years?

[aztektum]

It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

Somewhere in DC a lobbyist is trying to get statute of limitations increased to "death of the uploader + 99yrs"

The pricing seems different: $750/song

[cheros]

I note that this case claims a "mere" USD 750 per infringement. This is an interesting low amount.

Other than that, when-oh-when will we finally see sanctions for this sort of legal abuse? I can't see anyone regaining any sort of respect for the law and the legal system whilst this sort of shenanigans continue.

Re:Alternate summary

[NewYorkCountryLawyer]

If that's really what they say, then the law books are just wrong.

Oh. So you're God. Sorry, I didn't know.

Me I'm just a lawyer, who follows the law.