Recording Industry vs. The People

Friday, November 17, 2006

Answer Filed in Arista v. Greubel in Texas; Defendant Says Plaintiffs' Receiving $115M From Kazaa Bars Duplicate Recovery from Defendant

In Arista v. Greubel in Texas, the defendant has interposed a number of affirmative defenses, including:

-A first affirmative defense which alleges that if defendant were liable, Kazaa would be jointly and severally liable along with him, and that the $115,000,000 settlement which the RIAA received from Kazaa constitutes recovery in full.
-A third affirmative defense that the $750-per-song damages theory is unconstitutional, and that recovery should be limited to 4 times the value of each download, or $2.80 each.

Answer of David Greubel*

Mr. Greubel is represented by Charles Lee Mudd, Jr., of Chicago, Illinois, and John G. Browning of Dallas, Texas.

* Document published online at Internet Law & Regulation

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Table of Cases

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Permalink
posted by Ray Beckerman @ 11/17/2006 01:30:00 PM

Comments
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Quote:
"7. Although Defendant Greubel denies the factual and legal allegations in Plaintiffs’ Complaint, any recovery from Defendant Greubel for alleged copyright infringement arising from the use of KaZaA would be duplicative of the damages obtained from Sharman Networks." [$115,000,000]
"9. Through the settlement with Sharman Networks, the Plaintiffs have elected to accept a settlement that fully compensates them for the injuries allegedly caused by Defendant Greubel, among others."

sounds extremely logic to me, now we must see what the judge thinks...

Link to this comment posted by

Alter_Fritz : November 18, 2006 12:36:00 AM EST

ABOUT THE AUTHOR

"Recording Industry vs. The People"
By Ray Beckerman

-I am a lawyer in New York City, practicing at Ray Beckerman, P.C.. I established this site to collect and share information about the wave of sham "copyright infringement" lawsuits brought by four large record companies to abuse the American judicial system, distort copyright law, and frighten ordinary working people and their children. I have expanded the scope of the site to cover other copyright issues affecting the internet.
-Ray Beckerman
beckermanlegal.com
(Attorney Advertising)

"I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed."
-Hon. Margaret Kravchuk, Magistrate Judge, District of Maine, May 29, 2008, BMG v. Does 1-11
"If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right....."
-Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"[T]he inducement rule.... is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.....One infringes contributorily by intentionally inducing or encouragingdirect infringement...." (italics supplied)
-Hon. David H. Souter, for the Court, Justice, U.S. Supreme Court, June 27, 2005, MGM v. Grokster, 545 U.S. 913

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QUOTATIONS FROM DECISIONS

"Merely because the defendant has "completed all the steps necessary for distribution" does not necessarily mean that a distribution has actually occurred. It is a "distribution" that the statute plainly requires. See 17 U.S.C. 106(3)."
-Hon. Nancy Gertner, District Judge, District of Massachusetts, March 31, 2008, London-Sire v. Doe 1, 542 F.Supp.2d 153, 2008 WL 887491
"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement....However, .... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation."
-Hon. Rudi M. Brewster, Senior District Judge, Southern District of California, August 17, 2007, Interscope v. Rodriguez,2007 WL 2408484
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse."
-Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."
-Hon. David G. Trager, Senior District Judge, Eastern District of New York, November 9, 2006, UMG v. Lindor,2006 WL 3335048
"[D]istributing unlawful copies of a copyrighted work does violate the copyright owner's distribution right and, as a result, constitutes copyright infringement. In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." 17 U.S.C. [sec]106(3); see National Car Rental v. Computer Associates , 991 F.2d 426, 434 (8th Cir. 1993); 2 Nimmer, [sec]. 8.11[A] at 8-137."
-Hon. John D. Butzner, Jr., Fourth Circuit, June 30, 1997, Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
*List of quotations