New Motion to Drop File Sharing Case

By Jon Newton 9/29/05

p2pnet is working with Michigan lawyer John Hermann to bring you a report in detail and in depth on how he helped Candy Chan and her 13-year-old daughter, Britanny, stick it to the multi-billion-dollar Big Four record label cartel.

EMI, Universal, Sony BMG and Warner's RIAA (Recording Industry Association of America) claimed Chan was indirectly liable as a copyright infringer because she'd given Britanny a computer.

Jon Newton
"After taking Ms Chan's deposition, the RIAA moved to add the daughter," said Hermann. "I objected, arguing that the daughter was a minor and that they had to appoint a guardian ad litem before for the child before they could proceed. In the meantime, I threatened filing a motion for summary judgment on behalf of Ms Chan".

The RIAA's legal hit men ran for the hills, dropping the complaint.

Now the lawyers working with Patricia Santangelo, the New York mother who decided she wasn't going to stand still while the cartel tried to ruin her life, have filed a motion to dismiss another RIAA case.

Read on >>>>>>>>>>>>>>>>>>>>>>>>

Another Motion to Dismiss in New P2P Fileshare Case in Brooklyn Federal Court, Atlantic v Huggins
By Ray Beckerman - Recording Industry vs The People

On September 28th, another motion to dismiss an RIAA complaint in a peer to peer file sharing case was made, this time in Brooklyn federal court, in Atlantic v Huggins.

Under the court rules, a letter describing the motion is required, which will be followed by a court conference, prior to the service of formal motion papers.

We argued:

The Federal Rules of Civil Procedure require that a complaint give "fair notice of the claim asserted [to allow the defendant] to answer and prepare for trial." Simmons v Abruzzo, 49 F.3d 83, 86 (2d Cir 1995).

In copyright infringement cases, Rule 8(a)(2) "require[s] a plaintiff to plead with specificity the acts by which a defendant has committed copyright infringement.... [The complaint] must set out 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) (italics added).

A complaint must therefore allege, among other things, "by what acts during what time the defendant infringed the copyright." Marvullo, supra, 105 F.Supp.2d at 230 (italics added); Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561 at *1 (S.D.N.Y. Feb. 11, 2003) (granting Rule 12(b)(6) motion where "[p]laintiff ha[d] not attempted to describe 'by what acts and during what time' [the defendant] infringed the copyright"). See also Plunket v. Doyle, 2001 WL 175252 at *4-6 (S.D.N.Y. Feb. 22, 2001) (dismissing copyright infringement claim under Rule 8 because it "fails to describe the time period during which infringing acts occurred).

Here, the Complaint alleges in conclusory fashion and upon information and belief that defendant used "an online media distribution system" to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings "available for distribution to others." Complaint, 12. The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution.

Moreover, the allegation that defendant merely made these recordings available for distribution to others fails to state a copyright claim. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public. Arista Records, Inc. v. MP3Board, Inc., 00 Civ. 4660, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002) ("[i]nfringement of the distribution right requires an actual dissemination of ... copies") (emphasis added); National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 434 (8th Cir. 1993) ("[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords") (emphasis added) (citing 2 Nimmer on Copyright 8.11[A], at 8-124); In re Napster, Inc., 377 F.Supp.2d 796, 802 (N.D.Cal. May 31, 2005) (copyright owner must prove that the defendant "actually disseminated" copies of the copyrighted work to members of the public).

Thus, it's fundamental that the mere listing of copyrighted works in an index of files available for downloading by others does not violate the copyright owner's right of distribution.

In re Napster, Inc., supra, 377 F.Supp.2d at 802, 805 (granting summary judgment on this issue); Arista Records, supra, 00 Civ. 4660, 2002 WL 1997918 at *4 (posting on MP3Board website of links leading to infringing audio files doesn't establish unlawful dissemination of copies of such files to the public). See also Obolensky v. G.P. Putnam's Sons, 628 F.Supp. 1552, 1555-56 (S.D.N.Y.) (publisher didn't infringe on copyright owner's right of distribution of copyrighted book by listing the book in a trade publication as belonging to publisher where publisher neither copied the book nor sold any copies of the book; "there is no violation of the right to vend copyrighted works ... where the defendant offers to sell copyrighted materials but does not consummate a sale"), aff'd, 795 F.2d 1005 (2d Cir. 1986); 2 Paul Goldstein, Copyright 5.5.1, at 5:102 to 5-102-1 (2d ed. 2000 & Supp. 2005) ("an actual transfer must take place; a mere offer for sale will not violate the right"); SBK Catalogue Partnership v. Orion Pictures Corp., 723 F.Supp. 1053, 1064 (D.N.J. 1989) (merely "authorizing" a third party to distribute copyrighted works without proof that the third party actually did so does not constitute copyright infringement); CACI Intern., Inc. v. Pentagen Technologies Intern., 93 Civ. 1631, 1994 WL 1752376 at *4 (E.D.Va. Jun. 16, 1994) (marketing of software package without actually distributing it does not constitute copyright infringement).

Acting for Huggins are Ray Beckerman, Ty Rogers and Daniel Singer of Beldock Levine & Hoffman LLP, New York.

Go here copy of the letter of the defendants' attorneys, explaining why the complaint should be dismissed.

Go here to read a copy of the complaint.


Jon Newton is the editor of and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.


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