LimeWire Sues RIAA for Antitrust Violations

NewYorkCountryLawyer writes to tell us that in a recent court battle, Arista v. LimeWire, LimeWire has filed counterclaims against the RIAA for 'antitrust violations, consumer fraud, and other misconduct.' From the article: "LimeWire alleged that the RIAA's 'goal was simple: to destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms so as to limit and ultimately control the distribution and pricing of digital music, all to the detriment of consumers.'"

For those lawyers out there

Federal Rule of Civil Procedure 12(b)(6) will quickly dispose of this.

Re:For those lawyers out there

Still, it's the P2P services pushing back. The P2P services don't offer music, they offer files.

It's high time that a P2P service fight back in a meaningful way.

Re:For those lawyers out there

Given the number of frivolous lawsuits that the RIAA puts out?

Re:For those lawyers out there

... a borderline-frivolous lawsuit in your humble opinion. Obviously not for some lawyers representing Limewire.

Re:For those lawyers out there

Yes, IAAL: It's hard to gauge frivolity without knowing more about the case, and about any evidence that Limewire may have that could prove out their claims. If their claims have no basis in existing law or lack any evidentiary support (i.e. are frivolous), then the lawyers, their firm, or even Limewire could be sanctioned under Rule 11.

Now that I think about it, I suspect that Limewire's counterclaims are not as frivolous as we think. Few lawyers go out and just take a piss when it comes to filing motions. There is too much at stake. Sadly, it's only the frivolous suits or the cases involving plaintiffs who receive big judgments from what at first blush seem like frivolous suits that the public really cares to hear about.

Re:For those lawyers out there

Now that I think about it, I suspect that Limewire's counterclaims are not as frivolous as we think

IANAL, and while in law terms it might be frivolous, in simple common sense terms, the counter claim isn't frivolous, it's just stating the plain facts. IMO that IS the RIAA's game. The fact they're able to target people who are breaking laws that the RIAA have helped buy merely allows them to have some aura of legitimacy. If these people were using p2p legally, they'd find other ways to try to crush p2p.

Follow the Money

If there weren't a single RIAA song ever transferred over P2P you think that the RIAA would care?

Yes, they would care.

The Record Companies and by extention the RIAA are just like the Agents in "The Matrix". "They hold all the keys, and they guard all the doors" If you are going to distribute music in a big way, you MUST go to the Lables. If you, as a retailer, want to sell popular music, you MUST go to the Lables.

The Lables, take most of the risk, putting out hundreds of albums a year, with only a few proving to be hits. But the ones that really are hits, make the Lables lots of money. Today, some of the best selling ablums, day in, day out, are Pink Floyd, and The Beattles. This back catalog, costs them nothing, but rakes in big money, day after day after day.

Why? Because in the indentured servitude of artist to the record lable. The lable owns the music forever and makes the big money off of anything that sells. If it is not fair, why then does the artist not sign the unfair contract and sell it themselves? Because the reality is, without a lable, you cant sell on a large scale or get airplay, for a large enough audience to hear your music.

P2P is one of the ways the internet changes that. And if ANY artist, any garage band, via there website sells their album, and via P2P, have people discover there music, and then there website. The record labels, see NONE of that money. They can't claim the lions share for taking the risk for the artist of putting the album out. They can't take the lions share for the burden of adverising. They can't take the lionss share for being the source of music that sells.

For the lables to continue to make the kind of money they are used to, being what, 80% or more of the acutal profit from record sales, they have to be THE SOURCE for music. P2P has the power to cut them out of that loop and reduce them to having to play fair with artits and retailers. Taking their fair share for the work they do, and the service they actually provide artits.

They may squeel like a stuck pig right now, over piracy, and how much they are loosing, even with them making more now than they ever did before. But in the shell game of what is real, and what is spin, follow the money. The shell with the money under it, the one they keep in motion, the one they are trying to distract you from. Is the one where P2P destroys their stronghold on both the artist and retailer.

IAALs unite

IAAL too, and I tend to agree that despite common perceptions, it would be unusual for any serious law firm to advise its client to file a totally frivolous claim just as a stunt - apart from anything else the lawyers themselves would be exposed to a follow up suit from their clients. Looking at the circumstances, it's obvious that this will be high profile, the RIAA will come down on it as hard as possible, and the potential costs are huge, all of which suggest that it wouldn't happen without careful consideration of the consequences.

As such I wouldn't be surprised if there was some merit in it too.

In addition, I tend to regard the question of 'frivolity' as somewhat irrelevant for all but the most obviously stupid claims. It is an unfortunate consequence of the adversarial legal system that once you get over a certain fairly low bar in terms of merit, money, quality of representation, luck, and tactics all have a great deal to do with your prospects of success (as the RIAA know very well). As such it would be pretty surprising if Limewire didn't at least get over that minimum bar.

Re:For those lawyers out there

I'm just not sure a borderline-frivolous lawsuit is a "meaningful way" of pushing back.

There's no such thing as a frivilous counterclaim once you've been sued. It's defensive. Lime wire didn't bring this suit... they only need the jury to consider their side of any part of the issue when it comes to damages.

Re:For those lawyers out there

You can certainly get FRCP 11 sanctions on a counterclaim on the grounds that its frivolous. So, yeah, you can have a frivolous counterclaim.

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

Re:Can you say "totally subjective" frivolity test

not really, a judge's duties are to interpret existing laws and weigh evidence to determine the guilt or innocence of a party.

Now I'm just going to tell you this and then retreat from this argument, because I can tell you're not familiar with this subject. I don't think you've ever heard of heresay rules, for example, where judges determine whether evidence is admissable or not in a court of law (this is not "weighing the evidence, by the way--that is something different). Like most of what a judge does, it is a purely administrative function that has nothing to do with the guilt or innocence of a party, but instead provides a kind of constructive legal environment in which that determination can be made. In fairness, I didn't know that either until I went to law school. Cheers.

P.S. These are rules of civil procedure (i.e. they work great for civil cases, you know...lawsuits). Murder cases use a supplemental set of rules that prevent exactly the situation you described.

Re:Can you say "totally subjective" frivolity test

not really, a judge's duties are to interpret existing laws and weigh evidence to determine the guilt or innocence of a party.

FYI, the court rules are created by the court (although there may be procedural rules enacted by the legislature as well). So for example, a State Supreme Court might promulgate rules of procedure to ensure a fair process, and local courts will all have their own special local rules (e.g., attach X cover page to Y motion, Motion Z are heard every Tuesday at 1:30, etc. etc. so long as they don't conflict with the generally applicable rules -- the Feds do the same thing essentially). It is very non-astonoshing that a court would then interpret rules it created, and FWIW, when a court interprets it's own rules, it is not engaging in the practice known as "legislating from the bench".

The purpose of Rule 11 is to prevent parties from engaging in abusive litigation. In the most general terms, Rule 11 means that if a party brings a suit, they need a minimal basis for that suit. Rule 11 is a court adopted rule and as such, it should be expected that courts will be responsible for interpreting and applying it. Remember, court procedure is merely about creating a fair forum so that a fact finder (judge or jury) can decide the ultimate issues. Shotgunning the court with baseless claims is detrimental to a fair process. Because it is the court's duty to provide a fair process, it must be able to step in when things get out of hand.

Re:Can you say "totally subjective" frivolity test

Not quite: "abusive" means without a basis in existing law or fact, or that there are no reasonable arguments to extend existing law. A law is not "abusive" just because one dislikes it. So for example, if a person violates another's copyright, the content-owner may sue the infringing-user for damages.

An example of abusive litigation would be if the RIAA intentionally sued someone when it absolutely knew he/she had not violtaed their copyrights. It is not likely to be considered abusive for the RIAA to sue someone if they have a reasonable factual basis to believe a violation took place. Note, a "reasonable factual basis" is not the same as an "ironclad case". So linking an IP address "owner" with shared music files is probably a strong enough basis to start a case. Other facts might change this during the discovery process but at least intially, it certainly wouldn't be "abusive" in the sense used here. For example, if in discovery it came out that the IP address "owner" didn't actually buy the network service, but someone else did after stealing his credit card, the RIAA would really need to drop the suit.

Re:there's nothing frivlous here

The whole point of copyright is temporary exclusivity.

There is a world of difference between temporary exclusivity on a single piece of music and ongoing long term exclusivity on a controlling percentage of the market.

If the law doesn't recognise that then the law is an ass.

---

Don't be fooled, slashdot has many lying astroturfers [wikipedia.org] fraudulently misrepresenting company propaganda as third party opinion. FUD [wikipedia.org] too.

Re:there's nothing frivlous here

"The whole point of copyright is temporary exclusivity"

It's temporary in the sense that Earth is temporary - we're gonna get swallowed by the sun or "Big Crush"ed or something, but the fact is that there's no real reason to believe, given current trends, that copyrights are gonna expire, just like there's no reason to believe the sun won't rise tomorrow. Copyrights have been extended so many times now that it's silly to believe that they'll end without massive changes in Congress.

Re:For those lawyers out there

You know, I am just establishing an international, standardized computer network. But it is not my fault if people keep feeding that chain with spam or child porn on the other end. I'm just keeping the supply chain running, how am I supposed to control these things?

Indeed.

Re:And for those of us who aren't lawyers?

FRCP 12(b)(6) basically is grounds to dismiss one or more claims in a lawsuit because even if all the factual assertions made by the plaintiff are true, they have not stated a claim upon which relief may be granted.

IANAL. This isn't legal advice.

Re:For those lawyers out there

The RIAA wants you to pay for that single, not download it for free. And while I agree that it may suck that you would have to go to Tower to indulge in your obsessive love for all things Britney, it's not as if the RIAA is trying to steal or throw out your vote, or kill your grandmother.

Exactly.. they sell you something then insist you're not allowed to do as you please with it, which is direct impediment of the individual right to personal property in the civilized world. This itself is not the most damning manifestation of this attitude though.. they now insist on slapping DRM all over everything... This would be like me selling you a house but denying you the right to open any exterior or bedroom doors, it is a spit in the face to the democratic concept of self determination and the capitalistic concept of individual property. You essentially become a serf.. you're not allowed to own what you buy.. you have to pay taxes on it though!

In order to prop up this regime they make sure EVERY political candidate is under their thumb. They do this by a carrot(bribery) and stick(threats of bad press.. their holding companies own the main stream press) approach.

Then when they can't properly keep a lid on it.. and keep up with technology, consumer demand, and the times, they extort random people into bankruptcy via manipulated laws.. threatening to "sue".. but if they simply don't challenge it they'll "only" have to pay 4 to 10 grand.. isn't that nice of them..

They are also campaigning and engaging in "re-education" of the populace.. isn't a representative democracy supposed to reflect the will of the people? I thought "re-education" only occurred in orwellian dystopias and totalitarian regimes.

Re:For those lawyers out there

Yeah man... the like revolution is like on its way man. You just wait dude, Americans of all types are going to put down their sushi, SUVs, and Bed Bath and Beyond discount cards like fight the man... man.

Please. If Americans (and I say this as an American) can't be bothered to go vote in numbers greater than 50%, I am pretty damn sure that the revolution over fucking music copyright infringement is probably not on its way. You can't even get Americans to vote yet you think that they are going to go into the streets or pick up weapons? Ahaha. Please.

The US already has a perfectly effective way of changing the rules that makes the notion of a revolution laughable. Just because Americans don't bother to use their democracy doesn't mean that it doesn't exist. Hell if anyone can remember past 6 years ago, Ross Periot of all people came damn close to becoming president. The system works. We just don't use it. If there is anything wrong with the system is that it requires American citizens in order for it to run properly.

Re:For those lawyers out there

So this is why 2 american presidential candidates were arrested trying to gain entry to the 2004 debates?

The green and Badnark got arrested for trespassing. You can get yourself arrested too without much trouble; that doesn't make this Soviet America. You can't even put the US and a solid half of the world nations on the same scale when it comes to political freedom. Suggesting that you can simply shows deep ignorance about the state of the rest of the world.

oh please!.. the 2 reigning parties have essentially made it impossible for new parties to form.

I don't disagree in the slightest. You miss the larger point though which we shall get to in just a moment.

ross perot had 2 billion dollars at his disposal. Unless everyone else has that kind of money no.. the system does not work, and how dare you try to pretend otherwise

Ahh, now we are getting closer to the "problem" with American politics...

And this is why the majority of americans dont vote.. they know it's essentially communist china here with a little potpurri on the grungier and more totalitarian aspects.

And this is where the point flies right over your head. The Americans could have made Ross Perot president if they wanted to. Nazi storm troopers didn't drag Perot off in handcuffs. No evil corporate death squads showed up to prevent people from voting. Americans just didn't vote for him. They could have and they didn't. End of story.

Ask yourself why Ross Perot did so well. To give you a little history, this man for a brief time actually was LEADING in the polls. He only started to get trounced after his somewhat defective personality was brought to light by his public appearances. Ross Perot almost won because of marketing. Don't get me wrong, he had a message too, but what made him different from the Greens and Libertarians that loose each year is that not only was his message centrist enough to appeal (lets face it, the Greens and the Libertarians are extremist), but he had enough money drive his message like a spike through every single American's head.

This is the heart and the root of the problem with American democracy. Americans are too fucking lazy to learn about politics. You need to practically beat the American public in voting. You need to blast the airwaves and the TVs. You need to shove your message down their throat and send out armies of volunteers. The problem isn't that the poor oppressed masses of Americans don't have an alternative. They do have an alternative; they just either don't know about it because they don't bother to look. Even when they do have the alternative (as was the case with Perot), they further fail to not just vote for the alternative, but the majority simply fail to vote. The Americans are not the poor oppressed people whose will have been broken as you make them out to be. They are just flat out lazy and/or stupid. America's lack of choice is American's fault. Pure and simple.

If Americans were not so complicate and easily swayed by corporate sponsored political marketing campaigns, corporations would have no power. If Americans spent 5 minutes on the Internet, found an alternative, then voted for the alternative, the democins and republicrats would be out within a week. The Gestapo isn't going to stop them from voting or rig the election. No one is going to be sent to the Gulag for failing to vote for one of the two established parties. If they simply voted differently, the established parties would vanish.

Any political failures in the American political system are not the fault of evil corporations and politicians. The blame lies completely and ONLY on the shoulders of the voting (and more importantly) non-voting public. The failures of our political system stem directly from a failure to exercise the political power that all Americans over the age of 18 have.

So can it with the inane talk of revolutions and evil corporations. If you think the system is so corrupt, do this

Re:For those lawyers out there

Or, as Thomas Jefferson wrote [virginia.edu]:

Every government degenerates when trusted to the rulers of the people alone. The people themselves, therefore, are its only safe depositories. And to render even them safe, their minds must be improved to a certain degree.
-- Thomas Jefferson: Notes on Virginia Q.XIV, 1782.

And . . .

Whenever the people are well-informed, they can be trusted with their own government;... whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.
-- Thomas Jefferson to Richard Price, 1789.

Re:For those lawyers out there

Ok.. I've boiled your reply to the most relevant phrase which sums up your point..

If Americans were not so complicate and easily swayed by corporate sponsored political marketing campaigns, corporations would have no power

You do realize that modern marketing campaigns are designed by behavioralists and psychologists.

While the popular media depiction of "brainwashing" is a bunch of hodoo-voodoo nonsense, there is a real technique of what is termed "Conversion tactics" in psychological circles. It is a real process by which a person who has properly learned about the techniques can, with cold calculation, manipulate people's opinions, propensities, preferences, outlook, and behavior.

It's been in use by revivalist preachers since the 1600's, and studied and formalized by pavlov among others.

The guns and troops method is not the only method of subjugating the will of a population.. from a competitive market comes much more efficient and subtle ways to do it.

The few who recognize what is going on are diluted by the converted masses, and the even fewer who are able to excercise the carisma and talent to reverse the effects are carefully identified and unobtrusively "removed" from society before they can rock the boat.

It's not well publicised, but king was not assassinated for advocating civil rights for african americans.. it was only after he began speaking out for the poor and against the domination and exploitation of lower classes by moneyed interests that he was put down.

My argument may have been presented in the grandparent with a little more than a "bit" of hyperbole, but still the root stands.

Does anyone else want to say...

stay off my side? I agree with that LimeWire is saying, and I like LimeWire, but their business model is based off illegally downloading music, for the most part. I don't feel like I want this business model fighting fo rour rights. It doesn't give legitimacy to our side.

Re:Does anyone else want to say...

You do understand that our forefathers were traitors by definition of english law, that civil rights protestors were breaking jim crow laws, union men during the time of rockafeller were breaking laws, and finally anyone who drank during prohibition was breaking the law.

When the law is wrong people will fight for their right to do what is criminal. that said.. what is criminal is not necessarily morally wrong.

Judge Says: "Don't waste my time criminal"

Whatever they claim just doesn't sound right because, you know... That whole Napster thing... And, you know, those napster users were probably smoking teh pot too. Criminals. All of them.

The judge is thinking there's no way files can be legitimately shared... Who makes their own music? Why would they want to give it away? Smells like some kind of crazy thing my weird liberal parents might have done.

Let's not forget the judge has a windows desktop using totally proprietary software with antivirus and antispyware and anti-this and anti-that run by a system administrator who babysits the judge when the computer has a hic-up.

The judge experiences it all as working and working well, so where's the crime here?

End of LimeWire.

FRCivP 12(6)(b)

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Hurray!

Tagging it as "hurray". Why didn't I think of this first? It seems obvious now - sue RIAA for antitrust. Ingenious! No sarcasm.

yeahhhh, right there, oh oh ohhhh, joygasm

Even if nothing happens, at least I got a good laugh with (at?) Limewire and the RIAA (yeah, definitely laughing AT them). It just adds a new paragraph to this already hilarious and ridiculous saga.

There is one hope here....

At least as I see things. That is the hope that in the 'exploitation' of this countersuit, the judge sees som