p2pnet - rss feed: Motion to Dismiss: Denied!
p2pnet.net News:- “Texas is my turf, and it upsets the hell out of me the way this was handled. Judges normally … have to rely on expert witnesses for both sides in matters in which they have no expertise, or not enough to decide.”
That’s a comment post on Recording Industry vs The People.
The subject? A third ‘motion to dismiss’ complaint has been denied because a judge says his, “understanding of the P2P technology at this stage” isn’t enough for him to to decide whether or not, “the mere presence of copyrighted sound recordings in Defendant’s share file constitutes infringement”.
The same conclusion was reached in Waco, Texas, in Warner v Payne, and in Arizona in Interscope v Duty.
This latest travesty, another in the seemingly endless string of lawsuits lodged by the Big Four Organized Music cartel’s RIAA (Recording Industry Association of America) against their customers, including very young children, is listed as Fonovisa v Alvarez. And, says the site’s Ray Beckerman, “Once again the judge has ruled that the defendant must go through the expense of pretrial discovery before he [the judge] can have a sufficient ‘understanding’ to decide the issues”.
The key word here is ‘expense’ which’ll have to be borne by the victinms, not the obscenely wealthy record labels.
Vivendi Universal (France), EMI (Britain), Sony BMG (Japan, Germany) and Warner Music, the only American company in the so-called Recording Industry of America (RIAA) trade outfit, are engaged in an international multi-billion-dollar propaganda blitz under which they’re using the mainstream media to lie that they’re being “devasted” by people who share music with each other online.
They call file sharers “criminals” and “thieves” although nothing has been stolen, no money has changed hands and the labels have never been able to show file sharing results in lost sales.
What’s really at issue is: the major entertainment and software cartels are waging a vicious, no-holds-barred war against their own customers, whom they’ve labelled “criminals” and “thieves,” to gain total control of what they do, how they do it, and through whom, online.
Knowing victims – all of them very ordinary people with very ordinary incomes - won’t be able to even begin to match corporate legal, political and financial resources, the cartels are, with the active help of governments and law agencies, blackmailing non-compliant consumers into ’settling’ and admitting ‘guilt’ where no crime has been committed.
None of this would be possible without the active help and cooperation of the global mainstream print and electronic media outlets.
The claim that you and I are out to steal is, of course patently ridiculous, although the cartels have been robbing us for years. Most people are inherently honest, not the other way around, and offered decent product at a fair price, wouldn’t hesitate to buy it online or off.
But the conglomerates are applying their own standards to their customers, assuming they’ll cheat if they’re given a chance.
They’ve so far issued subpoenas to some 19,000 men, women and children in the US, and thousands more in other countries. They then claim to have successfully ’sued’ their victims for the non-existent crime of file sharing when at absolute worst, someone’s copyright may have been infringed, somewhere.
When a judge rules he doesn’t have enough information, that means defendants, with little or no money, have to somehow first buy it, and then supply it.
“I’m a highly experienced litigation lawyer; have been a member of the bar for over 27 years, and worked as a law clerk for 4 1/2 years before that,” says Beckerman in response to the comment post.
“I’ve never [before] heard of judges denying a motion to dismiss a complaint because they don’t ‘understand the technology’.
“Now I’ve heard that line 3 times in the RIAA cases.”
Stay tuned.
Also See:
Recording Industry vs The People - Another Motion to Dismiss Complaint Denied in Texas, Again Because Court has “Incomplete Knowledge of Technology”, in Fonovisa v. Alvarez, July 28, 2006
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July 29th, 2006 at 7:31 pm
BUTT they DO know $$$$$$$$$
It’s abundantly clear these ‘judges’ are being bought off by the biggest $$$$$$$$. In this case we know who the one(s) with the big $$$$$$$ are.
July 29th, 2006 at 8:20 pm
Some though,
Have recording contracts, and then are allowed to rule on
issues involving their contract holders.
Strange world.
July 30th, 2006 at 3:55 am
I’ll stop calling those who break the law by copying music and making it available for free for millions of others to copy “criminals” and “thieves” when you stop calling them “customers” and “fans.”
“Customers” support those who make their living creating and delivering products and services by purchasing those products and services. “Fans” care deeply about artists that fill their lives with whatever it is they feel they need that they can’t produce themselves.
p2pnet.net constantly displays a total contempt for those who would be “customers” and “fans” by glorifying and encouraging those who would be “criminals” and “thieves.”
July 30th, 2006 at 12:13 pm
“I’ll stop calling those who break the law by copying music and making it available for free for millions of others to copy “criminals” and “thieves”"
Hold it there.
The article says:
“A third ‘motion to dismiss’ complaint has been denied because a judge says his, “understanding of the P2P technology at this stage” isn’t enough for him to to decide whether or not, “the mere presence of copyrighted sound recordings in Defendant’s share file constitutes infringement”.”
So a judge, a lawyer, that has the duty of judging an infringement acusation doesn’t know if having songs in a share directory is infringement.
Then how can anyone in their right mind expect that kids and their grandparents know that sharing is infringement?
And you say they break the law, when even the judge doesn’t know what the law says?
And you call the kids and their parents criminal and thieves?
In essense you take upon yourself to prohibit others to do what a lawyer judge has not found to be prohibited by law.
After all, the reason the judge doesn’t know if having files in a shared directory is infringement is because he did not want to read the law or he read the law and found no prohibition on shared directories, so as to help the acusers. Nothing in the USA Copyright Act prohibits placing any type of file on a shared directory.
Surely if those that control and make the laws wanted, they could prohibii shared directories on computers, and kill the Internet right there, as that is what the Internet is, a bunch of shared directories full of copyrightable material.
So, shared directories are not prohibited by law but you say that those who have them (your words: “making it available”) are criminal and thieves. Sorry, but you make no sense at all.
Rafael Venegas
http://www.gvenegas.com
July 30th, 2006 at 1:56 pm
He is our resident troll, playing another role.
He’s not paid to make sense, just trouble
July 30th, 2006 at 2:00 pm
This is the Judge that did not let the defense attorneys speak
more than 2 words at a time, patently ignoring any attempts
at an argument.
What a surprise .. has a record contract.
Warner v. Does 1-149
Judge Richard Owen
Richard Owen:Rain
Label:Albany Records.
RIAA Affiliate ??
Considering his Co-Composers are
Geddy Lee, Alex Lifeson,Neal Peart and Dubois Lee, The RIAA affiliation is possible
July 31st, 2006 at 5:23 am
My point was that is it just as ludicrous to call them “criminals” and “thieves” as it is to call them “customers” and “fans.”
July 31st, 2006 at 5:37 am
Survey after survey unequivocally reveal that kids know exactly what they are doing … Technically unsavvy parents and grandparents find out by reading or hearing about court actions - or, with any luck at all, experiencing them themselves… or possibly by having their computers eaten alive by the malware the sponsors of this site deliver along with the free music.
July 31st, 2006 at 11:09 am
“Survey after survey unequivocally reveal that kids know exactly what they are doing …”
Sure they know what they are doing. They are getting computers, blank cds and Internet access as gifts from their parents. All products openly purchased from reputable firms, not purchased from smugglers. Then the kids do the natural thing. They use what they get to get pleasure, entertainment, culture and and knowlege by downloading shared files. That is the only thing to do on the Internet. No more, no less. It’s all natural.
What is not natural is to call them criminals and thiefs for being perfectly normal kids. Worse, what is unnatural is to sue them for it, just because some cartels wish to spread poison because they think, erroneously, that they will make more money if kids (their customers and the greatest music fans) are threatened and destroyed and driven away.
It is the record companies and music publishers, the music cartels, that know that what they are doing is criminal. What they do not realize is how senseless and self destructive their behavior is.
Rafael Venegas
http://www.gvenegas.com
July 31st, 2006 at 11:19 am
“My point was that is it just as ludicrous to call them “criminals” and “thieves” as it is to call them “customers” and “fans.”"
What is ludicrous is that the music industry call their best customers (kids, by far) “criminals” and “thieves”. It’s hillarious and senseless.
Rafael Venegas
http://www.gvenegas.com
July 31st, 2006 at 11:53 am
So the RIAA has not made a case that the judge clearly understands that hinges on points of law, as is thier duty to do so.
The judge instead of dismissing the case decides to leave the defendent swinging in the wind while the RIAA try to rack up wins by forcing the defendent into bankcruptcy.
And it turns out the judge should have recused himself anyway by way of having a record contract and thus a conflict of interest.
Looks like it’s just another case of US justice being available to those with the deepest pockets.
July 31st, 2006 at 2:06 pm
The judge I referred to , with the recording contract, was in
a different case ( Warner VS Does 1-149 ) Judge Richard
Owen, not this case. I don’t have the name of the Judge
in this case yet, so I can try to find HIS connection to
the industry.
If anybody finds the name of THIS judge, start hunting,
find his industry connection, and post it for all to see.
July 31st, 2006 at 4:08 pm
The key is what the pster said:
The judge instead of dismissing the case decides to leave the defendent swinging in the wind while the RIAA try to rack up wins by forcing the defendent into bankcruptcy.
The judge should have been honest and should have dismissed the case based on two simple facts: The law does not prohibit having shared directories on a computer and the acusers did not prove otherwise.
Lets be (very) naive, and assume people will check the copyright law to see if shared directories are legal or if downloading is legal, the peson will not even find the words “shared” or “download” in the law. Just because of that, no one should be acused of infringement of rights because of having shared directories or downloading files.
When you add the fact that no one can objectively determine if any any file on the internet is copyright protected or is in the public domain or is shared by a legal owner or is copied to a hard drive, the acusation of RIAA is absurd. Another reason why no one should be acused of infringement of rights because of having shared directories or downloading files.
As to why judges are not reasoning this out is beyond my comprehension, unless the judge …… well, you know.
Rafael Venegas
http://www.gvenegas.com
July 31st, 2006 at 6:24 pm
“because a judge says his, “understanding of the P2P technology at this stage” isn’t enough for him to to decide whether or not, “the mere presence of copyrighted sound recordings in Defendant’s share file constitutes infringement”.”
Under Section 501 of the United States Copyright Act, anyone who violates any of the six exclusive rights of the copyright owner is a copyright “infringer.”.
The law dos not say that having a song in a “share file” is an exclusive right. Its that simple.
July 31st, 2006 at 11:55 pm
How old are you?
August 1st, 2006 at 12:34 am
“What they do not realize is how senseless and self destructive their behavior is.” - Rafael Venegas
Actually, muchacho, what rights owners are doing has opened the door to massive investment in legal digital distribution. It gave us iPods and iTunes and innumerable other legal sites and software that will only get better and better as a result of additional investment because legal boundaries are starting to be understood and set.
People, including those implementing technological innovation, are getting paid to do so. Creators are beginning to see returns for their investments in themselves and the products of their minds.
Sure music and those who create it professionally were the canaries in the coal mine but they were never snuffed. They gasped for air as millions attempted to smother them with their selfish acts of taking and distributing what didn’t belong to them… but, it was those every acts … encouraged by sites like p2pnet.net … that brought on the implementation of tougher laws and tougher enforcement world wide.
There would be no need for lawsuits if people weren’t breaking the law.
Protecting rights is encouraging investment in technologies that will expand the consumer experience and provide compensation to those who create that experience.
Your thinking is totally backwards … and sooo, 1999.
Oh, and as to what kids are doing being ‘natural’… you’re starting to sound an awful lot like Michael Jackson. Aren’t you?
August 1st, 2006 at 1:23 am
quote:
…or possibly by having their computers eaten alive by the malware the sponsors of this site deliver along with the free music.
Malware that the cartels themselves paid third parties to put into the p2p environment. The firm Loudeye comes to mind as the foremost responsible party seeding files with Trojans that used the licensing scheme to insert themselves into the computer. I am sure that one company isn’t the only one making malware available on behalf of the cartels. However Loudeye was crowing at one point about having such and distributing it on p2p apps. The news was carried here at p2pnet among other places.
So the argument of gaining malware is a circular one leading right back to the so called “injured parties”, again demonstrating that the cartels have no place to take a morality stand.
August 1st, 2006 at 1:40 am
“Sure music and those who create it professionally were the canaries in the coal mine but they were never snuffed.”
Never snuffed by music publisher? Should have said it completetly, muchacho troll.
“There would be no need for lawsuits if people weren’t breaking the law.” This is no more than RIAA and RIAA lawyer doubletalk to justify the suing of kids for doing something that is not prohibited by law, as the judge found out but did not have the guts to say or could not say because he was in the RIAA payroll (like politicians are). I am still thinking to figure this one out.
August 1st, 2006 at 7:07 pm
Can you please clarify your statement.
August 2nd, 2006 at 8:50 pm
customer
One entry found for customer.
Main Entry: cus·tom·er
Pronunciation: ‘k&s-t&-m&r
Function: noun
Etymology: Middle English custumer, from custume
1 : one that purchases a commodity or service