Andersen v. Atlantic Recording Corporation et al
Filing
14
Attachment 5
Memorandum in Support
of Motion to Dismiss Plaintiff's First Amended Complaint. Filed by Settlement Support Center, LLC, Atlantic Recording Corporation, Priority Records, LLC, Capitol Records, Inc., UMG Recordings, Inc., BMG Music, Recording Industry Association of America. (Related document(s): Motion to Dismiss,
13.) (Attachments: #
1 Exhibit A#
2 Exhibit B#
3 Exhibit C#
4 Exhibit D-F#
5 Exhibit G-H#
6 Exhibit I) (Patton, William)
Andersen v. Atlantic Recording Corporation et al
Doc. 14 Att. 5
" . case '5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 1 of 10
UNITED STATES DIST,RICT COURT
FILED
wssTER~'gi DI!,TeAr,cr COURT
FOR THE WESTERN DISTRICT OF TEXAS, MAY 2 4 2006
, SAN ANONIO DMSION OLERK""
§ § § § § §
ARST A RECORDS, L.L.C., et aI.,
BY " , OF TEXAs
Y CLER
, Plaintiffs,
" 'v.
CAUSE NO. SA-05-CA-372-0G
DELINA TSCHIRT,
, Defendat.
§
ORDER
Before the Cour is plaintiffs' motion to strke defendat's second amended anwer and
, ,counterclaim'and alternative motion to strke her affrmative defenses and d~sinss her
counterclaims. The scheduling order set a May I deadline to fie motions to amend pleadings.
" befenclt tendere'd her second ~mended ~swer and counterclaim that day unaccompanied by a
motion for leave to fie.
, P,laintiffs have sueddef~ndant for infrngement of
,'
I. Rule,15(a).
their copyrghted sound recördings.
Plaintiffs allege that they have found dèfendan,t openly dissemiatig the sound recordings by
enabling the fi~-sharing featue of
her iMesh peer-to-peer (P2P) softare. Plaintiffs allege that
'.' .'.. .
folder" shQ\Yng the computer fies dissemiated through her P2P network. '
Plaintiffs first seek to strke the amended answer on the leave,ofcour. FED. R. Civ. P. l5(a). Rather than stre
MediaSentry, Irc., their investigator, logged onto the P2P network iUd viewed hundreds of
copyrghted sound recordings in defendat's iMesh folder that she was offenng to other network
ùser~. ,Plaìntiffs attached as an exhibit to their complaint the "screen shots" of defendat's "share
ground that defendant failed to
seek leave to åmend. After responsíve pleadings have been fied, a part may amend only by
the amended complaint for failure to
" f:Xi"tl!B§L~J) l\Cj/i;~"L~()f:;j!?_
Dockets.Justia.com
Case 5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 2 of 10
, seekleiive to' amend, the Cour wil constre defendat's response to plaintiffs' motion to strke
as her request for leave to amend.
Rule 15(ii) instrcts that "leave (to amend) shall be freely given when
justice so
"requires:" The rule evice,s a strong bias in favor of grting leave to amend, FDIC v." Conner. 20
p.3ci,
1376, 1385 (5thCir. 1994), but leave should llotbe grted automatically, In re Southark
(5th CÍr. 1996). Instead, the decision whether to grant leaveîi~s withn,
the tral cour. Louisiana v. Litton Mortgage ço.. 50 P.3d 1298, 1302-03
Coi:., R8 FJd 311, 314
the sound discreti9n of
(5th Cir.1995). In exercising its discretion, the Cour may consider such factors as undue delay,
bad faith or dilatory motive on the par of the movant, repeated failure to cure deficiencies by
amendIents previously allowed, undue prejudice to the opposing par, and futilty of
the
amendment. Foman v. Davis,'71 U.S.
178, 182 (1962); In re Southmark Corp., 88 F.3d at 314-
15. Evéii if
there is sUbstantial reason to deny leave toameild, the cour should consider
prejudice to the movart, as well as
gránting'leave. Jamieson v. Shaw, 772 P.2d 1205, 1208 (5th Cir. 1985).
, '"
judicial economy, in determnigwhether justice requires
II. Affrmatiye defenses.
Defendant seeks to add numerous affrmative defenses in her second amended answer.
Pläintiffs argue fuat defendat's affrmative defenses should be strck because she faiÍed to
include'them in her onginal answer and, can offer no justification for her failure to raise them
then. Affiqnative defenses must be pleaded or they are waived., FED. R. CN~ P:'8(c); Davis v.
HuskiDower,Olitdoor Equipment Coi:., 936 F.2d 193, 198 (5th Cir.l~91).
Plaintiffs point out that the' case had been pendig for 1learly a year when defendant fied
her secònd amended answer and that the pares have already sered and responded to wntten
,2
,G-j"
10
Case 5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 3 0(10
discovery àId are in the midst of depositions. Defendat argues that she did not fie the
affrmative' defenses earlier because she waited unti she had the facts to support them. She ~lso
argues'that she initially defended the suit pro se. In her response, defendant sets out the facts she
'alleges Sl1Pport her affrmative defenses.
The Cour
notes that discovery is set to close on Augut 1,2006, five month from the
,,
m. Counterclaims.
time her second amended complaint was fied.' Thus, it appear that there is adequate tie to
pursue these defenses in discovery. Plaintiffs do not argue that they are prejudiced or surnsed
by the affrmative defenses. The Cour wil
permt the affrmtive defenses to be filed.
Plaintiffs move to dismiss each of defencft's counterclaims on the ground that they fail
to state'claims for relief. FED. R. CN. P. 12(b)(6). Because the Cour has not yet granted the
motion for leiwe to' amend, however, it is more appropnate to examine these claims according to
,'
plaintiffs' ,aliegations that it would be futile to permit the ~mendinent. "When futility is
advanced as ,the reason for'
, ..
denying an amendment to a complaint, the cour is usually denying
leave because the theory presented in the amendment lacks legal foundation ...... Jamieson By
and Tho?gh Jamiesot) v~ Shaw. 772'F.2d 12,05,1208 (5th Cir. 1985). See also'Dávis v, United
States, 961 F.2d 53, 57 (~th Cir. 1991) (ifproposed amendment would offer plaintiff
no avenue
of redress, there is 'no reason tci allow it)~ Furer, if a
complaint as amended is subject to
diSmissal,leiive to amend"need not be given. ~an-Islamic Trade çor.. v. EXxon, 632 F.2d 539,
546 (5th Cir. 1980).
A. Defamation and fraud.
Defen4ant asserts in her response that
plaintiffs used MediaSentr to access her hard
3
'''=''-
/0
Case 5:05~cv-00372-0LG" Document 48 Flied OS/24/2006 Page 4 of 10
drive to determne whether she had violated provis~ons of
the Copyrght Act,17q.S.C. § 101.
Defendat pleaded that plaintiffs "published orally and, presumably, in wntig to representatives
of MediaSentr
and others" that she had infrged plaintiff' copyrghts. Defendat also pleaded
that Wiliam Pitzl, an attoniey representig plaintiff, contacted her by telephone and asserted
that'she had infrged plaintiff' copyrghts and owed them hundreds of thousands of dollar. In
her response, defendant .asserts that plaintiffs had also disseminated to Pitzl the false státement
tnat she had infged their copyrghts. Defendat's frud cause of action is also based on the
conversation she allegedly
., " . . . .
'action; those corIunications are protected by the attorney-client privilege.
had with plaintiffs' attorney PitzL. She alleges that he knowingly
made materially false representations and omissions of material facts in an attempt to extort
thöusandS of dollars from her.
The coi~lImiliications' between plaintiffs and their attorneys ciiniot support a defamation
or fraud
In addition,
proceeding are absolutely
Qut.of~c.our communications by attorneys,
prelimina to a
judicial
, privileged. RusselI v. Çliik, 620 S.W.2d 865, 868-70 (Tex.Civ.App.--Dallas 1981, wnt rerd
n.r.e.). ' 'ICommunications made durng the coure of judicial proceedigs are pnvilêged. The
privilege also extends to pre~tral proce~dings, including affdavits fied with the cour." Bird v.
W.C.W., '88 S.W.2d 767, 771 (Tex. 1994) (citations omitted). The absolute Immunity Texas
,'
law affords, those in the judicial process extei.ds not only to couroom testimony, but to all
,preliminary matters connected with the litigation. James v. BroWn, 637 S.W.2d 914, 916-17
'" (Tex~'1982). Thus, 'the communcations plaintiffs made to MediaSentr in anticipation of
ths
litigation ard Pitzl's communications to defendat.
are privileged and canot support a
defamation or frud claim. '
4
EXHU3lT EJ::lJ,GE~OF !.
Case 5:05-cv-00372-0LG Document 48 ' Filed OS/2412006 Page 5 of 10
B. Invasion of privacy.
Defendant alleges that plaintiffs invaded her pnvacy though improper use of '." subpoena provisions of § 512(h) of
the
the Digital Milennium Copyrght Act. Defendat alleges
that plaint~ffs' used the Act to discover her naie though a subpoena served on her internet
service provider (!lISP"). She alleges that the Act does not authorize the issuance ofa subpoena
to ap ISP that is acting solely as a conduit for communications not stored on its servers. Whether
or not tlie Act permts the issuance of a subpoena, it appear ~ as defendat admts in pargrph
48 of
her second amended answer and counterclaim ~ that the subpoena was obtained by cour
order pursUat to a Rule 45 subpoena in 'a Doe lawsuit. ~ Ex. A, Plaintiffs' Memorandum of
Law in Support ofMotÌon to Stre.
Nor as a iItter òflaw wil acêessing defendat's hard drve support an invasion of
privacy. _ The elements of a cause of action for invasion of pnvacy are: (1) an intentional
intrsion, physicaily or otlerwise~ upon another's solitude, seclusion,' or pnvate affairs or
concerns, which' (2) would be highly offenSive to a reasonable person. Valenzela v. Aquino.
853 S.W.2d 512~ 5I3 (Tex. 1993). When assessing the offensive natue of
the invasion, cour
,'fuher requíre:th~ intrsion to be uneasonable, lljustified, or
unwaranted. Bilings v.
AtkiÌ1soi 489 S.W.2d 858, 86Ò (Tex. 1973). Consquently, one is liable only for an
unwaranted mtrsion into, another's privat~ affairs.
, Plaintiffs argue that there has been no invasion of
privacy because the alleged music fies
detected by: their investigators in defendat's iMesh folder were made available to the public to
, viewaiidcopy. Whle defendat I1intains that she
'did not infrge plaitifs' copyrghts,
'the sound
downoad ~usic, or engage in file-sharg activities,' she does not dispute that
5
EXHiBITb?~ ¡-i~Abui- /0 G PI).f.ê¡:; S:O~F ~
Case 5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 6 of 10
record~ngs plaintiffs discovered,were located in the share folder of
the P2P softare on her
computer. A user ofa P2P file-shang network ha Uttle or no expectation ofpnvacy in the fies '
, he or she offers to others for downloading. ~ In re Venzon Internet Services. Inc.. 251
F.8upp.2d 244, 267 (D. D.C.) ("if
an individual subscnber opens his computer to permt others,
though peer.to-peer file shag, to download materials from that computer, it is hard to
, understad just what privacy expectation he or she has aftr essentially openig the compute to
, the world" ), rev'd on other Ipounds. 351. F .3d 1229 (2003); Sony Music Entertainent Inc. v.
Does 1-40,326 F.Supp.2d 556; 566 (S.D. N.Y. 2004) (miimal expectation of pnvacy in
downloading and distrbuting copyrghted songs without permssion); United States v.
Keiuedy,81 F.Supp.2d 1103, 1110 (D. Ka. 2000) (no expectation ofpnvacy where user hii
öp~nedtiles up 'on home computer to anyone who wantsto receive them)., '
, ., '. ,., '' .' ~' "'
,'
third pares"). In other words, any intrion
Further, ifit is tre as defelldant suggests that the fies being shared in the computets
iMesh folder did not belong to her or if
the computer did not belong to her, then'defendat stil
has no action for invasion of pnvacy. Defendat canot have ,an actionable privacy interest in
somëone elseis tiles or computer. ~ Warth v. Seldin. 422 U.S. 490,499 (1975) ("plaintiff
generally must assert his own legal rights and interests, and cilDnot rest.his claim to reliefon the '
....
,,
Defendant asks that
le'gal rights òrinterests of
would not be into
de'fendant's private affaÌrs. "
C. Abuse of process ~r malicious prosecution.
'she be permtted,to entitle this portion of her
counterclai
IIMaIicious, CivÍI Prosecution" rather thaI ¡'Abuse of
Process" and that she be permtted to amend
her counterciaim to assert a malicious prosecution cause of action. "In a suit allegig the
6
ExHiB~T_~:if\Gt: lo~OF /0 '
Case 5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 7 of 10,
malicious prosecution of a civil claim, the plaintiff must establish the following elements: (1)
the institution or continuation of civil proceedings againt the plaintiff; (2) by or at the insistence
of the defendat; (3) malice in the commencement of the proceedigs; (4) lack of
probable cause
for the proceeding; (5) termination ofthe proceeding in plaintifts favor; and (6)
special
damages. Texas Beef
Cattle Co. v.Green, 921 S.W.2d 203, 207 (Tex. 1996). The civil
prosecution defen~ant complains of is the present one. ' She therefore canot,show that it has
terminated in her favor. See hL at 207-08 (at time plaintiff
brigs a malicious prosecution suit,
the underlying civil suit must have termnated in,plaintiffs favor). A malicious prosecution
~ause of~ction' wil
not lie ~ a ~tti: ofiaw.
D. Electronic trespass.
claim for "electronic trespass" - that plaintiffs ilegally "entered her home" by aCcessing the fies oil he,r computets hard d-ve. As there åpparently exists no cause of action in Texas for
"electronic trespass", the Cour interprets defendat's claim as one for trespass to chattels. A
,'
Defendant relies on the facts aserted in her invasion of privacy claim to support her
trespass to chattels is a wrongfl interference with or injur to propert tht causes actul
, damage to the propert ,or depnves the owner ofits use for a substatial period of time.
AistTon~ y. Benavides, 180 S.W.3d 359, 363 (Tex.App.--Dallas 200S, no pet.).
As indic~te(t abov~, there was no "wrngful interference" because plaintiffs' investigators
did not entèr the private portion of
,',
", .. '
her computer, but only accessed, the publically~shared fies.
Defendat does not deny this; sh~ merely reiterates ~t plaintiffs conitted trespass by enterig
her hoiie ,without permssion. Nor does,
defendat complain that plaintiffs daaged her
computer or demed her access to it. Thus, she canot mantain her cause of action for electronic
7
, G '1'"
." ''; .,.~, ~'~'" F. FV3r~-Rü.~.r~'""",;,;'.r,"~"---tr.-),,, /0 ,~\. U .lj . "lr 'I Ìi'0"'~""=~=.~N1l ~_ .._--
, , Case 5:05-cv~00372-0LG Document 48 Filed OS/24/2006 Page 8 of 10
trespass or trespass to chattels,
E. Computer Fraud and Abuse Act.
Defendant h~s asserted a cOÜDterclaim Under the
Computer Fraud and Abuse Act, 18
U.S.,C. § l030 ("CF AA"). She alltges that plaintiff broke into her computer without
authorizatiön to obtain information. She fuher alleges that plaitiffs wilfully used her
computer without authorition to äppropriate propert for their own puroses.
The CF AA is a criminal statute that allows prosecution of civil actions if cerin
pterçquisites are satisfied. 18 U.S.C. § i 030(g). The CF AA makes it a cne for anyone to
"inteniioiialIy access( J a protected computer without authorition, and as a result of such
conduct, cåue( ) damage and .. loss to 1 or more persons'dunng any I-year penod ...
aggregating at least $5,OÓO in value .....IS U.S.C. '§ l030(a)(5)(A)(iii) and (a)(5)(B)(i)~ The
, ,.
reasonable cost to any
CF AA' also provides that "(a)ny person who suffers dage or loss by reason of a violation of
thls section may maintain a civil action against the violator to obtain compensatory dages and
injunctive relieför other equitable reiief." 18 V.S.C. § 1030(g). "Damages for a violation
involviig only conduct described in subsection (a)(5)(B)(i) are limited
Id: A "protected computet' includes a computer "which is used in interstate or foreign
,,
victi, includig the cost of
...
to economic-daages."-
, cOnherce or' communcation ..;'18 U.S.C. § 1030(e)(2)(B). "Loss"!s defined as "any
responding to an offense, conducting a
damage assessment, and restoring the data, progr, system, or information to its condition pnor
to the offense, and any revenue lost, cost incured, or other consequential dages incu:ed
bec~use'ofiiit~rrption of~ervce."18 U.S.C. § 1030(e)(Ù).
Defendant alleged that the computer was her personal computer located in her home and
8
~.:t- ~R1T G- f,) !\('F ~ U-' f:=u-_ gVH ~ß.J~ oo~~J lt""J,",io~ I ()
'that she Used it "to communicate with frends and family across the countr and for interstate ecommerce." She claims economic and emotional daages includig expenses, lost earings and
medical expenses. All the plaintiffs have done, however, is to access the area of
,''
,, ,
Case 5:05-cv-00372-0LG Document 48 Filed OS/24/2006 Page 9 of 10
her computer
open to the public and make prited images of those public fies. Defendat does not allege any
, damage to her'computer or loss of
its use. Even asSUng that "intertate e-commerce" involves
income-pròducing activity rather than merely purchasing consumer items online, other than a
vague reference to "economic dages", defendat has not asserted any loss of
business opportnities based on plaintiffs' accessing her computer.
, 'In' additio~ and as discussed above, assuming that the fies in the iMesh folder plaintiffs
accessed were made available by defendat to'the public for copyig and fuer distrbution,
' ,'
income or other
plaintiffs' access of
the folder containing those files was not "unuthoried." Defendat assert
her 'computer available to th~ public. She does not,
that she did not 'nie any porton of
ho~ev~r"cÒntend that the public iMesh' folder was not installed on her computer. She merely
assert that if it wil there she did not install it. If it was on the compute, access by the public -
including pli;intiffs' investigator- was not "unauthoried." ~ International Ass'Q of
Machinists and Aerospa~e WQrkers ~. Werner-Masuda, 390 F.Supp.2d 479, 498 (D. Md. 2005)
(dismissing,CFAA claim where defendant had authorization to access computer).
, F. ~eclaratory judgment.
FItally" defendat seeks a declaratory judgment that she did not inge plaintiffs'
,, ,
,
9
copyrghts. The issue of copyrght infngement wil be decided by ths
Cour regardless of
the
declaratory judgment claim unless
'the paries settlê the cas~ or the plaintiffs move for dismissal
judgment is
under FED. R, CIV. P. 4 I (a)(2). Therefore, defendat's claim for a declartory
, i:-vHOi~¡.f' G to, ",f:,,""" 9 ""'\''C- /V i;":/''' .L'; U _J't,~)jb~UIf~_
Case5:q5-cv-00372-0LG Document 48 Filed OS/24/2006 Page 10 of 10
redundant and unecessar.
IV. Conclusion.
Plaintiffs' motion to strke is GRAD in par and DENID in par. Rather than
requir~ defendant to fie another amended answer, the Cour will' permt her to file the Second
Amended Anwer tendered on March I, 2006, but wil stre, her counterclai on the grund of
futilty. It is so ORDERED.
,~
SIGNEtbis~daYOf i.~~. r
ORLANO L. GARCIA UNTED STATES DISTRCT JUGE
10
...~
E)(HiSITfJ3 hGE1!0¡:" /0
'-z'
Kenneth R. Davis, II, OSB No. 97113 davisk ~Ianepowell.com Wiliam T. Patton, OSB No. 97364 pattonw(g lanepowell.com
LAN POWELL PC
601 S.W. Second Avenue, Suite 21QO
Portland, OR 97204
Phone: (503) 778-2100
Fax: (503) 778-2200
Attorneys for Plaintiffs ,
ATLANTIC RECORDING CORP.; PRIORITY RECORDS LLC; CAPITOL RECORDS, INC.; UMG RECORDINGS, INC.; and BMG MUSIC
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
ATLANTIC RECORDING
CORPORA nON, a Delaware corporation;
No.
'05- 933 AS,
PRIORITY RECORlS LLC, a California limited liabilty company; CAPITOL RECORDS, INC., a Delaware corporation; UMG RECORDINGS, INC., a Delaware corporation; and BMG MUSiC, aNew York
general partnership,
COMPLAIN FOR COPYRIGHT
INFRINGEMENT Copyright Infringement (17 U.S.C. § 101 et
seq.)
Plaintiffs,
v.
TANYA ANDERSEN,
Defendant.
JURSDICTION AND VENUE
PAGE 1 ~ COMPLAINT FOR COPYRIGHT INFRINGEMENT
~I\
LANE POWELL PC
fol SW SECOND AVENUE, SUIT 211XL
PORTLND. OREOON 912043158
PHONE: (S03) 77~-2IUO
fAX: (503) 778.22111
EXHIBiT-iH..lti",;""~,.,~,,~ u.._ .. ,::i/èr;¡F I Qlf:; 7
1. This is a civil action seeking damages and injunctive relief for copyrght
infringement under the copyright laws of the United States (17 U.S.C. § 101 et seq.).
2. This Court has jurisdiction under 17 U.S.C. § 101 et seq.; 28 V.S.C. § 1331
(federal question); and 28 V.S.C. §1338(a) (copyright).
3. This Court has personal
jurisdiction over the Defendant, and venue in this Distrct
is proper under 28 U.S.C. § 1391(b) and 28 V.S.G. § 1400(a), in that the Defendant resides in this District, and the acts of infringement complained of herein occurred in this District.
PARTffS
4. Plaintiff Atlantic Recording Corporation is a corporation duly organized and
existing under the laws of the State of Delaware, with its principal place of business in the State
of
New York.
5. Plaintiff Priority Records LLC is a limted liabilty company with its principal
place of business in the State of California.
6. Plaintiff Capitol Records, Inc. is a corporation duly organized and existing under
the laws of the State of Delaware, with its principal place of business in the State of New York.
PAGE 2 - COMPLAIN FOR COPYRIGHT INRINGEMENT
LANE POWELL PC
601 SW SECOND AVENUE. SUIT 21lKI
PORTLND. OREGON 97204-3158
PHONE: (513) 778-2100
f'AX: (S03) 778-22(10
't:':'J\V-UiJy;n''1 L :,': i: (:;:~ f;';~ 7~= - ~- ut i ~ a .l:1~-,~,-.J)-'!1 \\~;¡~~~",===-.~-Jil
7. Plaintiff UMG Recordings, Inc. is a corporation duly organized and existing
under the laws of the State of Delaware, with its principal place of business in the State of
California.
8. Plaintiff BMG Music is a general parership duly organized and existing under
the laws of the State of New York, with its principal place of business in the State of New York.
9. Plaintiffs are informed and believe that Defendant is an individual residing in this
District.
COUNT I
INFNGEMENT OF COPYRIGHTS
10. Plaintiffs incorporate herein by this reference each and every allegation contained
in each paragraph above.
i 1. Plaintiffs are, and at all relevant times have been, the copyright owners or
licensees of exclusive rights under United States copyright with respect to certain copyrighted
sound recordings (the "Copyrighted Recordings"). The Copyrighted Recordings include but are
not liiited to each of the copyrghted sound recordings identified in Exhibit A attached hereto,
each of which is the subject of a valid Certificate of Copyrght Registration issued by the
Register of Copyrights. In addition to the sound recordings listed on Exhibit A, Copyrighted
Recordings also include certain of the sound recordings listed on Exhibit B which are owned by
or exclusively licensed to one or more of the Plaintiffs or Plaintiffs' affiiate record labels, and
PAGE 3 - COMPLAIN FOR COPYRIGHT ININGEMENT
LANE POWELL PC
601 SW SECOND AVENUB. surr 2100
PORTLND. DRBGON 97204.31~8 PHONE (~03) 178-2100 fAX: (503) 778.2200
EXibj"iw:iJ~_-=-,,-,j-." J\t"~,::\;Ú::::",.=.=,,'.':oJ~'a ~~ ~~; ¡¡ u nrq C",,,,,~,""'3 ne 7
which are subject to valid Certificates of Copyright Registration issued by the Register of
Copynghts.
12. Among the exclusive rights granted to each Plaintiff under the Copyright Act are
the exclusive rights to reproduce the Copyrighted Recordings and to distribute the Copyrighted
Recordings to the public.
13. Plaintiffs are informed and believe that Defendant, without the permssion or
consent of Plaintiffs, has used, and continues to use, an online media distrbution 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 distrbution. Defendant's
actions constitute infringement of Plaintiffs' copyrights and exclusive nghts under copyright.
14. Plaintiffs have placed proper notices of copyright pursuant to 17 U.S.C. § 401 on
each respective album cover of each of
the sound recordings identified in Exhibit A. These
notices of copynght appeared on published copies of each of the sound recordings identified in
Exhibit A. These published copies were widely available, and each of the published copies of
the sound recordings identified in EJ.bit A was accessible by Defendant.
15. Plaintiffs are informed and believe that the foregoing acts of infringement have
been wilful and intentional, in disregard of and with indifference to the rights of Plaintiffs.
PAGE 4 - COMPLAIN FOR COPYRIGHT INFRGEMENT
LANE POWEll. PC
601 SW SECOND A VEIWE, SUIT 2100
POR1lND. OREGON 91203158
PHONE: (S03) 718.2100
FAX: (SOJ) 718-2200
i1~nfi'LJU1',:c'n'¡'" D.f\1'r~' U 01\" 7 . 1\ 1L- i _1,,,s '\'î,'(,,~~,::L.,.\ jr~___
16. As a result of Defendant's infringement of Plaintiffs' copyrghts and exclusive
rights under copyright, Plaintiffs are entitled to statutory damages pursuant to 17 V.S.C. § 504(c)
for Defendant's infringement of each of the Copyrighted Recordings. Plaintiffs further are
entitled to their attorneys' fees and costs pursuant to 17 V.S.C. § 505.
17. The conduct of Defendant is causing and, unless enjoined and restrained by this
Court. wil continue to cause Plaintiffs great and irrparable injury that cannot fully be
compensated or measured in money. Plaintifs have no adequate remedy at law. Pursuant to 17
U.S.C. §§ 502 and 503, Plaintiffs are entitled to injunctive relief prohibitng Defendant from
further infringing Plaintiffs' copyrights, and ordering Defendant to destroy all copies of sound
recordings made in violation of Plaintiffs' exclusive rights.
WHEREFORE, Plaintiffs pray for judgment against Defendant as follows:
1. For an injunction providing:
"Defendant shall be and hereby is enjoined from directly or
indirectly infringing Plaitiffs' rights
under federal or state law in
the Copyrighted Recordings and any sound recording, whether
now in existence or later created, that is owned or controlled by
Plaintiffs (or any parent, subsidiar, or affiliate record label of
Plaintiffs) ("Plaintiffs' Recordings"), including without limitation
by using the Internet or any online media distrbution system to '
reproduce (i.e., download) any of
Plaintiffs' Recordings, to
PAGE 5 - COMPLAINT FOR COPYRIGHT ININGEMENT
LANE POWELL PC
6111 SW SECND AVENUE, SUIT 2100 POR1lAND.OREOON 972043158
PHONE: (503) 778-2100
fAX: (503) 778-2200
it"",-t,\'i'b,í ~ ~,-~" J ~ _. ',11\~, ~I "i (-"c~ J ) r;Q . U _ -' C b 1i&,,:;~ U"" "' Ii ~'"l~,..Ecc-=..=-~
e'v' g"='""..,,~ tl ij""'I' ,,""...,~ ~ 0'",2
distrbute (i.e., upload) any of Plaintiffs' Recordings, or to make
any of Plaintiffs' Recordings available for distrbution to the
public, except pursuant to a lawful license or with the express
authority of Plaintiffs. Defendant also shall destroy all copies of
Plaintiffs' Recordings that Defendant has downloaded onto any
computer hard drive or server without Plaintiffs' authorization and
shall destroy all copies of those downloaded recordings transferred
onto any physical medium or device in Defendant's possession,
custody, or control."
2. For statutory damages for each infringement of each Copyrghted
Recording pursuant to i 7 D.S.C. Section 504.
3. For Plaintiffs' costs in this action.
4. For Plaintiffs' reasonable attorneys' fees incurred herein.
5. For such other and further relief, either at law or in equity, general or
special, to which they may be entitled.
PAGE 6 - COMPLAINT FOR COPYRIGHT ININGEMENT
LANE POWELL PC
601 SW SECOND I\VENUE. SUIT ZIOO POR11AND, OREGN 97Z043IS8
PHONE: (:l)3) 178Z100 FAX: (503) 178-220
EV,U~,t;~û Tt:~e.Jj.~" "u . ü ~ :V 0 JI ,.."
1
Dated: 6f0OO5
LANE POWELL PC
By: ~¿p
(503) 778-2100
'Kenneth R. Davis. II, aSH No. 97113 Willam T. Patton. aSH No. 97364
Attorneys for Plaintiffs
PAGE 7 - COMPLAINT FOR COPYRIGHT INFRGEMENT
LANE POWELL PC 601 SW SECOND AVENUE. SUFT2100
PORTLAD. OREGON 972043158
PHONE: (SOL) 778-21 00
FAX: (503) 778-2200
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