The Recording Industry's Unclean Hands By George Ziemann -- September 13, 2005 Found this tidbit at Boycott-RIAA, which provided a link to the response of a second RIAA defendant (from Seattle) who is fighting an RIAA subpoena. The response "answers" the RIAA's charges, paragraph by paragraph, so I thought it would be helpful to see the boilerplate John Doe subpoena for comparison. Let's briefly examine the contents of the complaint and the answers, edited to make sense to a normal person and for self-indulgent humor, because legal stuff is all so boring. If you're a nit-picker, please just get the originals and compare them for yourself. Items 4 and 5 seem to be the only thing that really differs from the RIAA's template. RIAA says... Defendant says... This is a civil lawsuit for copyright infringement. Why yes, it appears to be. This court has jurisdiction. Okay... Defendant, without consent or permission of the copyright owner, disseminated over the Internet copyrighted works owned and/or controlled by the Plaintiffs. Such illegal dissemination occurred in every jurisdiction in the United States. But his ISP is here, so it's the proper venue. It's the correct venue, but the rest is nonsense. We are a corporation and a record label. Really? Who the defendant is That's me. Yep, I live at that address. This is where the actual complaint starts, but we'd like to include the first five paragraphs. We agree that you said it. We are either the owners or exclusive licensees of the songs listed separately. And we registered every song with the Copyright Office. Then you'll have no problem proving it. We are the only ones entitled to reproduce and distribute these songs. Really? How did that happen? There must be a contract or something. The Defendant stole our stuff. Defendant has, without our permission or consent, downloaded, distributed to the public, and/or made available for distribution to others a bunch of songs. And we're betting that there are some we missed, too. Must have been someone else. We put a copyright notice on this stuff. On an mp3? These acts of infringement have been willful, intentional, and in disregard of and with indifference to the rights of Plaintiffs. They may have been, but someone else must have done it. We're entitled to damages and attorney's fees Not if you're suing the wrong person. We have suffered irreparable injury that cannot fully be compensated or measured in money. Not by me. Then, the Defendant offers up a few counterclaims, which include: Even if we were guilty, you waited too long. They probably never filed a copyright registration; They're a little hard-nosed about damages; What exactly is it we are supposed to have done? I thought Grokster was responsible. We can't both be. Besides, it must have been someone else. But this is my favorite: "Plaintiffs are not entitled to equitable relief under the doctrine of unclean hands." Not being a lawyer, I've never heard of the "unclean hands" doctrine before. So I looked it up. unclean hands n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Source -- Law.com Hmmm... "anything unethical in relation to the subject of the lawsuit". Like the recording contract? Is it a work for hire? Or does the artist own it? Does the artist agree, or is there an unsolved question of copyright ownership? Of course, that will all be cleared up when the copyright forms are submitted, so we can all see how that breaks down. Have any of those artists ever sought audits? Did the label owe them money? Of course they did. If the artist has a recording contract, something unethical happened. If a song gets radio airplay, we know something unethical happened. If a record label still owes artists millions of dollars because they either can't find them or because they "lost the original contract and don't know how to divide it up," there's something unethical happening. Is it possible to sue someone for infringement of a copyright which was taken (or is in the process of being taken) from the artist in an unethical manner? Or to which proper royalties have never been paid? I guess we'll find out soon enough.