p2pnet - rss feed: Patricia Santangelo ruling
p2p news / p2pnet: US judge Colleen McMahon has given Sony BMG, Vivendi Universal, Warner Music and EMI, carte blanche to continue to their warped and bloody-minded sue ‘em all marketing and disinformation campaign.
Under it, their (Recording Industry Association of America) sends subpeonas to people they say have shared copyrighted music online. They then threaten them with court unless they agree to spurious ’settlements’.
So far, in the region of 16,000 very ordinary people, including young children, have been ’sued’ in this way. And because not one of them has the financial or legal resources to take the mega-billion-dollar music industry and its legions of expert lawyers on, not one of these cases has been properly tried in open court.
This is turn means not one of the victims has been judged guilty of anything. However, the labels’ purposes have been served. Thanks to the lawsuits, they can imply they’ve successfully prosecuted thousands of people, knowing the mainsteam media with their propensity for reporting by press release, will faithfully repeat the message as though it’s accurate and comes from reliable sources.
The same media will ignore the fact that the RIAA’s efforts are having no effect whatsoever on file sharing or file sharers. Instead, literally millions of former cash-cow ‘consumers’ are turning away from any and all on- and offline product they associate with the RIAA and its owners.
New York mother Patricia Santangelo bravely tried to take the Big Four on. But judge McMahon ruled for them in a decision they’ll crow loudly as a major victory.
However, in reality, it’s a dying gasp from an increasingly irrelevant industry that’s no longer able to freely impose its will on ‘consumers,’ as it once did.
These lawsuits are, however, achieving two things:
They’re driving people to the p2p networks, and they’re doing more than anything else to publicize file sharing.
Judge McMahon’s decision will be greeted by Organized Music as a triumph. But it will have no effect whatsoever on file sharing or the p2p networks, visible and invisible. Nor will it be “business as usual” for Sony BMG, Vivendi Universal, Warner Muisc and EMI, ever again.
The only thing this “victory” will achieve will be to make the lives of Santangelo and other victims who will now be targetted thoroughly miserable.
And to no good end.
Below is Judge McMahon’s decison in full >>>>>>>>>>>>>>>>>>>>>>>>
ELEKTRA ENTERTAINMENT GROUP, INC., a Delaware corporation;
VIRGIN RECORDS AMERICA INC., a California corporation;
UMG RECORDINGS INC., a Delaware corporation;
BMG MUSIC, a Ne York general partnership; and,
SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership,
Plaintiffs,
-against- 05 Civ. 2414 (CM) PATRICIA SANTANGELO, Defendant.
——————————————————————-x
DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
McMahon, J:
Plaintiffs Elektra Entertainment Group, Inc., Virgin Records America, Inc., UMG Recordings, Inc., BMG Music, and Sony BMG Music Entertainment (collectively “Plaintiffs”) are recording companies that own or control exclusive rights to copyrights in sound recordings.
(Complaint (“Cplt.”) 11). Pursuant to the Copyright Act of 1976, 17 U.S.C. § 106, Plaintiffs enjoy the exclusive right to reproduce and to distribute to the public the copyrighted sound recordings at issue. (Cplt. 12).
Plaintiffs bring this action against defendant for copyright infringement, seeking damages and injunctive relief. In their Complaint, Plaintiffs allege that: Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others. In doing so, Defendant has violated Plaintiffs’ exclusive rights of reproduction and distribution. Defendant’s actions constitute infringement of Plaintiff’s copyrights and exclusive rights under copyright.
(Cplt. 13).
Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that Plaintiffs have failed to satisfy the pleading requirements set forth in Federal Rule of Civil Procedure 8(a), as applied to copyright infringement claims. Because the court finds that Plaintiffs have adequately plead their claim under Rule 8’s lenient pleading standard, defendant’s motion is denied.
Standard of Review
Dismissal of a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is proper where “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999). The test is not whether the plaintiff ultimately is likely to prevail, but whether he is entitled to offer evidence to support his claims. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998). The court assumes that all factual allegations in the complaint are true, and draws all reasonable inferences in the plaintiff’s favor. EEOC v. Staten Island Sav. Bank, 207 F.3d 144, 148 (2d Cir.2000). “In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc. 937 F.2d 767, 773 (2d Cir. 1991).
Discussion
Defendant moves to dismiss the Complaint on the ground that Plaintiffs have failed to satisfy the pleading requirements applicable to copyright infringement claims. In particular, defendant claims that Plaintiffs fail to set forth the specific acts and the dates and times of the alleged copyright infringement, as required by Federal Rule of Civil Procedure 8.
Pursuant to Rule 8, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Gmurzynska v. Hutton, 355 F.3d 206, 209 (2d Cir. 2004) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “With the exception of claims for fraud and mistake [] the sufficiency of a complaint is judged by the ‘liberal system of notice pleading’ set up by the federal rules.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993)).
A complaint alleging copyright infringement sufficiently complies with Rule 8 when the plaintiffs assert (1) which specific original works form the subject of the copyright claim; (2) that plaintiffs own the copyright in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) by what acts and during what time the defendant infringed the copyright. Franklin Elec. Publ’r, Inc. v. Unisonic Prod. Corp., 763 F.Supp. 1, 4 (S.D.N.Y. 1991); Home & Nature Inc. v. Sherman Specialty Co, Inc., 322 F.Supp.2d 260, 266 (E.D.N.Y. 2004). A properly plead copyright infringement claim must identify “the particular infringing acts . . . with some specificity. Broad, sweeping allegations of infringement do not comply with Rule 8.” Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000).
Plaintiffs’ Complaint satisfies Rule 8’s pleading requirements, as applied to copyright infringement claims. It is undisputed that Plaintiffs have identified which specific works form the subject of the copyright claim, and have asserted that Plaintiffs own the copyrights in those works and that such copyrights have been properly registered. The court finds that Plaintiffs also have satisfied the final requirement– that Plaintiffs identify by what acts and during what time defendant infringed the copyrights.
The Complaint, to which a list of the relevant copyrighted recordings is attached, alleges that defendant “has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.” (Cplt. 13). This statement, while brief, contains more than “simply broad and sweeping allegations of infringement.” Rather, it sufficiently puts defendant on notice as to which acts– downloading and distribution of certain copyrighted recordings via online media– form the basis of the Plaintiffs’ claim. See Home & Nature Inc, 322 F.Supp.2d at 266-267 (finding sufficient under Rule 8 plaintiff’s claim that, since December 2000, defendant has infringed one or more copyrights by “importing, causing to be manufactured, selling and/or offering for sale unauthorized tattoo-like jewelry items”); Buckman v. Citicorp, 1996 WL 34158, *2 (S.D.N.Y.
Jan. 30, 1996) (finding that the complaint, which alleged that defendant “copied by Electronically Reproducing,” misappropriated, used and exploited “Buckman’s Theory,” sufficiently put defendant on notice of plaintiff’s claims); cf. Marvullo, 105 F.Supp.2d at 230 (finding that, “Aside from the specific allegation that defendant [] violated plaintiff’s copyright by unauthorizedly cropping the McNeely photograph, [the complaint] fails to allege with specificity any acts by which either defendant directly or contributorily violated plaintiff’s copyright”).
Moreover, contrary to defendant’s contention, it is of no consequence that Plaintiffs plead on information and belief,” rather than setting forth specific evidentiary facts to support their allegations. At least one court has expressly held that, “Pleading ‘upon information and belief’ is sufficient to satisfy federal notice pleading under Fed.R.Civ.P. 8(a).” Steinbrecher v. Oswego Police Officer Dickey, 138 F.Supp.2d 1103, 1109-1110 (N.D.Ill. 2001). Under Rule 8, Plaintiffs need only give notice of the claim, leaving “factual details and evidentiary issues [to be] developed during discovery.” Capitol Records, Inc. v. Wings Digital Corp., 218 F.Supp.2d 280, 284 (E.D.N.Y. 2002); see also Plunket v. Doyle, 2001 WL 175252, *6 (S.D.N.Y. Feb. 22, 2001) (holding that plaintiff need not specify in the complaint each infringing act, as “discovery is likely to provide many of the details of the allegedly infringing acts and much of this information may be exclusively in defendant’s control”).
With respect to the time period of the alleged copyright infringement, the Complaint alleges that, since February 28, 2005 (the date the Complaint was filed), defendant has “used and continues to use an online media distribution system to download the Copyrighted Recordings.”
(Cplt. 13). This assertion of continuous and ongoing infringement satisfies the pleading requirements applicable to claims for copyright infringement. In Franklin Electronic Publishers, the court found it sufficient under Rule 8 that, “ . . . while plaintiff has not alleged the date defendants allegedly commenced their infringing activities, plaintiff has alleged that defendant continues to infringe.” Franking Elec. Publ’r, 763 F.Supp. at 4; cf. Plunket, 2001 WL 175252 at 5 (dismissing copyright infringement claim under Rule 8 in part because complaint did not include any description whatsoever of the time period during which the alleged infringement occurred). Similarly, in Home & Nature, the court concluded that “the fourth element [of pleading a copyright infringement claim] is satisfied because plaintiff states that the defendant has, since December 2000, infringed and continues to infringe ‘one or more’ of its copyrights by ‘importing,causing to be manufactured, selling and/or offering for sale unauthorized tattoo-like jewelry items. ‘” Home & Baure Inc., 322 F.Supp.2d at 266-267. The court declined to order a more definite statement with regard to the copyright infringement claim, finding that the complaint adequately put the defendant on notice of the acts and times of alleged infringement. Id. Likewise, in rthe present case, Plaintiff’s allegation of continuous and ongoing infringement satisfies Rule 8’s pleading requirements.
For the foregoing reasons Defendant’s motion to dismiss is denied.
The court notes that this case has garnered a considerable following on the Internet – partly due to the mistaken belief that I have already decided the case in favor of Mrs. Santangelo. I have not – and today’s simple pleading ruling does not begin to address the merits. We will turn to them now, and to the question that is raised by this and similar complaints: is an Internet-illiterate parent, who does not know Kazaa from kazoo, and who can barely retrieve her email, liable for copyright infringement committed by that parent’s minor child, who downloads muisc over the web without the parent’s knowledge or permission – but using the parent’s Internet account?
This constitutes the decision and order of the court.,
Dated November 28, 2005
Colleen McMahon, U.S.D.J.
November 29th, 2005 at 7:30 pm
> who downloads muisc
Someone needs to learn how to use spell checking.
November 30th, 2005 at 1:15 am
I would hate to be a copyright defense lawyer in the US. The law clearly favours any claim, however generalized it is.
November 30th, 2005 at 2:26 am
This is a case where the following the selected jurisprudence (opposing jurisprudence is almost always possible to find but it is too burdensome for lawyers and judges and their law clerks) simply results in a logically wrong decision. It is common in lawsuits to have presented up to three different jurisprudence cited to argue a desired result, one by the plaintiff, one by the defendant and a third one by the judge. Frequently the selection of the jurisprudence is quite arbitrary.
Jurisprudence: The lazy person’s way of editing, clarifying, confusing and making new laws.
The decision, the Patricia Santangelo ruling, is wrong because under the premises of the judge and the jurisprudence she chose and the way she interpreted the jurisprudence, anyone can sue anyone without any proof of wrongdoing under the theory that the proof can be presented later on. This of course creates an social imbalance, because the if the plaintiff has the money (thus POWER) to file with temerity a trivial lawsuit, it can do so because there is a benefit. The benefit is that the POWER to file a trivial lawsuit and take the case to trial can be used to EXTORT because trials are very expensive for the selected target. And the target will always be selected will be one who may come up with $5,000 to settle, but has no chance of financing a lawsuit that reaches a trial phase. Justice, as everyone should know, is only for the rich.
It is incredible that the judge did not see that her decision will promote future EXTORTIONS on a massive scale, directed to selected economically disadvantaged persons. All because the judge’s decision gives the power and the incentive to EXTORT.
To avoid the EXTORTION of the type that this decision will promote in cases of non commercial minor infringement (minor meaning that no copies were sold for profit) some guidelines for record companies to follow will be required in cases where the is good evidence of minor infringement: a. The record company can bill the copier for the actual costs of the copies. b. If the bill is not paid, a small claims court claim can be made to enforce the payment. c. Threats of lawsuits shall be prohibited, as threats constitute EXTORTION.
It is also predictable that other industries and individuals will see a great opportunity in the judge’s decision, as if America was not already the most litigious country in the world.
Now surelt someobe will set up a “Settlement Center of America for Victims of Slippery Floors”, who will EXTORT with letters like these to selected business owners:
Dear Store owner:
Our customer slipped in one of your stores and fell down. As a result she suffered immensely. If you pay us $5,000 now, our customer will not sue you for damages that may be as high as $1,000,000. For now we will not give details about the fall, such as date, time and store address, or damages suffered, so please do not ask for that information. Judge Colleen McMahon has decided that you have no right to know the facts until trial time, well after the lawsuit has been filed and you have spent many time the amount of money we are now asking for. At lawsuit time, you will find out who our customer is, because the name is on the lawsuit. You have 30 days to mail your check. Once you make the payment, our customer will waive the right to sue you for the past fall. Newer falls are not covered by your payment.
Sincerely
Settlement Center of America for Victims of Slippery Floors
Rafael Venegas
http://www.gvenegas.com
November 30th, 2005 at 4:27 am
So basically the motion to dismiss is denied so then this will go to court right????? I wouldnt have expected the judge to dismiss it. I just hope that the lawyers she has will stick with her through all the court proceddings.
November 30th, 2005 at 5:55 am
right, I think a court battle can be a good thing
November 30th, 2005 at 11:25 am
“I think a court battle can be a good thing”
Only if torture of the victim is a good thing and the legal expenses are not paid by the victim and there is certainty that the judge will not make more mistakes and goes against the victim.
A good thing for RIAA and their very expensive lawyers who will make a bundle in the case. Now even if plaintiffs loose the case, plaintiffs won because the RIAA lawsuit spree get additional (albeit artificial respiration) life. Now we will see delay after delay on the case so that there is more of the good thing.
Of course, an additional good thing is that the record companies can ask for astronomical legal expenses just to scare Santangelo and others like her into submission and into not appealing if she looses the case, a possibility because of how incompetent the judicial system is and its biased tendency to favor money over reason.
It is also a good thing if you are pro foreigners who own the big record companies that push mostly musical crap to their American through radio and press payola, install spyware on your computers and record songs without licenses so as not to pay royalties to songwriters, as Santangelo case plaintiff Sony Sony has done with the music owned by my family on at least 16 records, while, to our knowledge making one record with a licensed song owned by my family. These 16 records should have generated over one million dollars in royalties (at present worth) and not one cent has been paid. That is big time infringement, by RIAA leader and Santangelo case plaintiff, Sony. The details can be read on our web page.
It is also a good thing if you do mind being a sitting duck for arbitrary and senseless copyright infringement (and the other types that will be promoted by the senseless Santangelo ruling) lawsuits. After all, the copyright law/judicial system has turned everyone into a copyright infringer (and thief/criminal as RIAA portrays file sharers), whether you know it or not because the Internet does not filter out the copyright protected works embodied in sound, image, software and text files. After all, a program you own may copy files to your computer without you realizing that it has made you a “criminal”.
The war in Iraq is also a good thing, if you are a right wing religious zealot, your son is not a soldier, if you want to protect Arab royalty more than the American people, you are a military contractor and Vietnam never happened and want to play-policeman-of the-world. A really good thing.
Rafael Venegas
http://www.gvenegas.com
November 30th, 2005 at 2:27 pm
who downloads muisc?
Millions of dyslexic’s every day!!!!
Some times I’m so funny I make my self laugh.
November 30th, 2005 at 10:28 pm
eh, maybe when the judge first said she was happy to see a mom fighting against the big industry, that was her way of upping her bribe.
December 1st, 2005 at 10:57 am
“that was her way of upping her bribe.”
or to conceal the true intentions or a secretet deal already made.
that is what you get when judges are selected by mostly corrupt politicians and come from large law firms that operate in the world center of corruption. the mafia, wall street, labor gangster control new york. there if you are not corrupt, you do not get named as a judge.
result is no can get a fair trial in new york.
December 1st, 2005 at 12:15 pm
I wonder if the judge would have ruled the way she did if she knew about this posting and that she was using p2p software: a browser and that most of her frined and family are “criminals”, as the word is used by RIAA. To explain I will repost something I posted elsewhre on P2PNET.
===============================================
How about a new copyright infringement category: Set as Wallpaper.
It was invented by an unknown programmer that addded a right mouse or menu option when when using a www browser :”Set as wallpaper” or “Add as wallpaper”. The idea being that when the cursor hovers over an image, you can set the image as your wallpaper. Of course, the image’s copyright status is unknown but it is likely that the image has a copyright that does not belong to you. Very few images on the web are in the public domain, so you are now almost surely an infringer, because the image is stored somewhere in the vowels of you hard disk.
Microsoft adopted the “Set as wallpaper” option on Internet Explorer, thereby becoming the greatest inducer to copyright infringement ever, when Internet Explorer became the predominant browser. The Kazaa inducemnt theory developed by the Supreme Court would certainly have been different if the Judges knew about Microsoft’s inducement. The money politics would have been different.
Mind you, when you use the “Set as wallpaper” option you are not warned that the image you will be using may have a copyright owners and that if the owner finds out you installed the image, he can sue you for $150,000.
There is no FBI warning on Internet images and no image in the Internet comes out clean and says “Iam in the public domain”. Well, actually It can’t, because only an owner could certify that an image is in the public domain and if there is an owner, there is no public doamin. A copyright paradox.
The paradox aside, this type of infringement is worse than if you shared a song, because frequently the infringed image is seen in corporate offices whenever a computer is turned on, and that is a second type of infringement, a violation of the exclusive public performance right that authors allegedly have.
Also this makes Microsoft the biggest, by far, inducer of copyright infringement.
I only regret that I did not invent and patent the “Set as wallpaper” option. I could then ask $1.00 to Microsof for each Internet Explorer installed, for using my patent. I would then be an instant billionaire, thanks to the incredible law that allows software patents.
This is no spoof.
Rafael Venegas
http://www.gvenegas.com
December 7th, 2005 at 4:33 pm
I’d be willing to donate to a defense fund for Ms. Santangelo if there was something easily setup to do it. Such as a Paypal account.
Has anyone heard of a defense fund for Ms. Santangelo?
December 26th, 2005 at 2:46 pm
i think we should support this woman with donations if each of us send a doller then she can aford the best legal minds to help her ,,
December 26th, 2005 at 2:48 pm
don’t be the vice of doom ,theres no decission yet ,, i think she should go with a jury,,,,
December 26th, 2005 at 6:52 pm
MY QUESTION IS, DOES A PRIVATE COMPANY HAVE THE RIGHT TO ENTER INTO A PERSONS HOME TO CONDUCT A SEARCH WITHOUT A COURT ORDER. WAS A COURT ORDER EXECUTED AND WAS THE DEFENDANT NOTIFIED OF THE SEARCH? ARE THE PROOFS OF THE SEARCH LEGALLY OBTAINED OR IS THEIR SUIT ESTABLISHED ON FRUITS OF THE POISON TREE? I CALL ANY ENTRY INTO HER HOME OR COMPUTER BURGLARY WITHOUT PROOF OF ANY LEGAL ENTRY. SHE SHOULD GO TO THE ACLU AND ASK THEM TO TAKE HER CASE ON THOSE GROUNDS.
December 27th, 2005 at 1:01 am
This is by far the most ridicules case I read so far. They want to take this lady to trail due to the fact that she has these files on her personal computer at her own home! First off RIAA had no rights of what so ever to intrude into her PC and look for these files. There is a privacy law out there that protect our american citizens from companies snooping into our PC as they damn please. They had just broke a law right there by hacking into her computer to look to see if those files were there. I hope that if this lawsuit gets throw out that she will counter-suit for privacy. Maybe once and for all the RIAA will think twice before making another mistake of looking into someone’s computer for such files. Second off, y is the RIAA targeting personal users when they should be targetting the big ones, for example; MP3 Portable players ( I will not mention names cause everyone already knows them ). I mean think about it, these Portable players now adays hold anywhere from 30gigs to about 120gigs of music. I mean do you really know how much it would cost to fill one of those Portable players with music, I seen people everywhere with Portable players full of music, do you really think they are all bought music?
In order to fill a 30gig iPod meaning that usually MP3 files rages about 4.5megs per file. 1gig is consist of 1000megs, so 30gigs would be 30,000megs. Now divide this by 4.5megs and you will get 6666.66 repeating, meaning you can put up to 6,666 songs on this freaken iPod and I seen that many before on numerious iPods. Just go on any search engine and seach up iPod Music List and you will see what I mean. So in theory you can fit about 15 songs per CD if you were to go and buy a Music CD at the stores it would cost about $19.99 per Music CD and has about 15 songs. So if you divide the 6,666 songs by 15 for per CD you would have 444.4 Music CD’s bought in-order to fill the iPod. So now in conclusion if you take the 444.4 and times it by $19.99 for the cost of 1 Music CD. It would cost $8,875.56 to fill that Portable player and this is not even including taxes. Let alone that one of these Portable players cost close to $300, I mean do you believe that everyone who has one of these Portable players has exactly a little over $9,000 to fill one?
Now this is just the 30gig version, think of those that are 120gig version! GOD DAMN! It will cost you $35,502.24 just to fill and also no taxes included.
An average american does not even make that much in a year!
These companies that makes these Portable players makes more people to want to go and download these music. Seriously, do you have that kinda of money to blow?
This goes to show how the RIAA is being run, I mean they might as well just let me run the RIAA. I mean with me being the CEO of RIAA, it would not really makes a diffrence, cause it can’t get any worst then it is already being is. LOL