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)

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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 E~.¡I'¡'F"1",~!f I ~ L~"";' ""\",,,,,~.",,=_ ~'! , 'O " ~'"dJ '",..""''''"..""",,,,',,"',,'' ';""'1 ("~' 7" ",c,,_. "."",,=,,,'o,"'f:' 1 ":,.,/,-,:':r' ))fJ"" ~

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