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N2H2's Motion to Dismiss in Edelman v. N2H2, Inc.
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posted by filter_editor
on Thursday October 03, @02:26PM
from the sue?-nah...we-just-like-to-carry-a-big-stick,-is-all dept.
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< Secrecy & Openness in the EU
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N2H2's Motion to Dismiss in Edelman v. N2H2, Inc.
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As much as I would like to see the merits of this case decided, I tend to think that N2H2 will win its motion. It is difficult to see how Edelman can overcome the 1st Circuit standard for establishing a case or controversy in this instance. Any threats to legally pursue him (as Seth Finkelstein attempts to show) are really just general declarations that N2H2 will protect itslegal rights. To me, such categorical statements about protecting one's rights simply cannot be the basis for a declaratory action. I would be interested to see any case law in the First Circuit which says otherwise.
Indeed, in many instances, even a cease and desist letter sent directly to the DJ-Plaintiff will not suffice to create standing (assuming it is properly hedged). If this case were allowed to procede, I suspect that it would open the floodgates to declaratory judgment actions against anyone who has ever asserted that they will defend their legal rights.
Anyone else?
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I do not disagree with the above gentleman's position, but their may be sufficient reason for the judge to take this case.
As long as a law is being used for defense -- to defend your product from illegal exploitation -- there is no question (in my opinion) that a premptatory strike against the law should not be heard for the reasons stated by the gentleman above.
In the Felton case, I believe the judges position not to hear the case was streight forward and clear cut.
1. The RIAA never threatened to use the DMCA against Felton, they stated that there might be DMCA implications and one (or more) of their member companies could see fit to take unilateral action.
2. Judging from Feltons history the court parbably assumed (correctly in my opinion) that Felton never took the letter seriously and cancelled his presentation for the sole purpose of providing grounds for the counter-attack.
Since that time the DCMA has been used as an offensive weapon against clearly innocent offenders. Demitry was arrested and held for almost six month, never prosicuted and he never came to trial. After six months of persicution his passport was returned without a sorry, and he was allowed to return home with a simple promise that he would testify in his employers trial (there will never be a trial and no charges have been brought against Ecosoft).
Verizon is currently in court defending their position that private, personal information about clients should not be turned over to a private company without a proper search warrent signed by a judge.
The threat of blackmail is in fact a criminal act (right?), you do not actually have to extort anything or actually do harm to be prosicuted.
I believe that if the Judge believes (or is persuaded) that the DMCA is being used by the defendent to intimidate, limit, or alter the legal activities of U.S. citizens, then he may reasonably hear the case.
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