Wednesday, June 10, 2009

Jammie Thomas: registrations not certified, so dismiss my case!

Just five days before trial, Jammie Thomas has moved to dismiss the record labels' entire case against her, arguing that the court lacks jurisdiction because the plaintiffs' copies of the copyright registrations for the songs at issue are not official "certified" copies from the Copyright Office. [See update at bottom; motion was denied as "premature."]

I admit it's been a long time since I've looked closely at the public records authentication issues that form the basis for most of Thomas', and I won't comment in detail on their plausibility at this point. But a few preliminary thoughts:

1. Thomas' motion rests upon the assumption that the court lacks jurisdiction under 17 U.S.C. § 411(a) if the plaintiffs do not have (certified copies of) their copyright registrations in hand. However, her brief glaringly fails to note that the very issue of whether Section 411(a) is jurisdictional is currently before the Supreme Court in Reed Elsevier v Muchnick. The omission is particularly glaring because the brief cites a Second Circuit case in support of this proposition, and Reed Elsevier came from the Second Circuit. And Thomas does not cite any 8th Circuit authority for the proposition that the requirement is jurisdictional (there are cases from across the country going both ways).

2. The logical and practical import of Thomas' motion is that the unofficial copies of registrations that the plaintiffs currently have in hand are somehow different from the originals. Is she really claiming that the copies are forgeries, or were altered? That's absurd, and she has zero evidence of such chicanery. At least at first glance, this seems to me like a situation tailor-made for Federal Rule of Evidence 1003, which provides, "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." I don't think Thomas has raised any such "genuine question."

Clearly, the labels would be better off if they had the actual certified copyright registrations in hand, and I suspect they are scrambling to get them (though they have said it "remains unclear whether Plaintiffs will be able to obtain certified copies prior to trial."). I think the court is going to be extremely reluctant to throw out the plaintiffs' entire case right before trial on such a technicality. But I can hardly blame Thomas' new counsel for trying...

UPDATE: The court today held its pre-trial conference and did not immediately rule on the various motions in limine. However, it did deny the motion to dismiss, at least for the time being. Here's the entire minute order:

Minute Entry for proceedings held before Chief Judge Michael J. Davis: Motion Hearing held on 6/10/2009 re [279] MOTION in Limine to Preclude Defendant from Raising or Asserting Evidence of Other Lawsuits filed by UMG Recordings, Inc, Warner Bros Records Inc, Sony BMG Music Entertainment, Capitol Records, Inc, Interscope Records, Arista Records LLC, [310] MOTION to Dismiss for Lack of Jurisdiction filed by Jammie Thomas-Rasset, [283] MOTION in Limine to Preclude Fair Use Defense filed by UMG Recordings, Inc, Warner Bros Records Inc, Sony BMG Music Entertainment, Capitol Records, Inc, Interscope Records, Arista Records LLC, [276] MOTION in Limine - Unopposed filed by Jammie Thomas-Rasset, [284] MOTION in Limine to Preclude Defendant from Asserting an Innocent Infringement Defense at Trial filed by UMG Recordings, Inc, Warner Bros Records Inc, Sony BMG Music Entertainment, Capitol Records, Inc, Interscope Records, Arista Records LLC, [272] MOTION in Limine to Exclude the Testimony of Defendant's Expert Dr. Yongdae Kim by Plaintiffs filed by UMG Recordings, Inc, Warner Bros Records Inc, Sony BMG Music Entertainment, Capitol Records, Inc, Interscope Records, Arista Records LLC, [263] MOTION to Suppress Evidence filed by Jammie Thomas-Rasset. Motions were moved argued and taken under advisment. Order to follow. Motion to Dismiss [310] was ruled premature and denied. (Court Reporter Lori Simpson) (kmw)
(emphasis added).

4 comments:

  1. Unlike you, I do blame defendant for trying. Because of Rule 1003, as you point out, the motion is completely frivolous. More than that, I've litigated in federal courts throughout the country, and the idea that an attorney would sandbag an opposing counsel by trying to exclude copies after all this time with no reason to doubt their accuracy and try to dismiss the case on that basis, in my opinion, breaks the duties of civility and candor that attorneys are supposed to have towards each other. This is a very troublesome position for a party to take when their supposedly basic tenet is that the plaintiffs are without scruples. As long as I'm at it, I also take issue with the idea of filing so many scattershot briefs that basic rules and potentially controlling caselaw go uncited and unaddressed.

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  2. Your reference to rule 1003 is misplaced - that has to do with the best evidence rule, which isn't relevant here. This has to do with a hearsay exception, which specifically provides that the public record must be certified. A copy of the certified record is not a certified record.

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  3. Oops, in the last post I meant self-authentication, not exception to the hearsay rule...

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  4. The standard for a 12(b) motion to dismiss for lack of jxn requires the court to establish as true all well-pled facts in the complaint in the non-movant's favor. Here, plaintiffs allege that they are the copyright holders and that the court has subject matter jxn under Title 17 (probably 501). Without more, how can this not survive a motion to dismiss? Because it is judged on the face of the complaint, it seems inconsequential what the movant found in discovery or what they feel the non-movant can or cannot admit as evidence.

    If, as Camara alleges, the registrations are so deficient as to be fatal on their face, why didn't he attach them as exhibits and move for a summary disposition? The fact that he didn't seems very telling as to his confidence on that issue.

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