The RIAA has a practice of making motions to strike counterclaims; if it cannot find a substantive basis for much a motion, it will seek to strike it on technical grounds, such as redundancy. Since motions to strike for redundancy are disfavored in modern federal practice, these motions have met with mixed success.

COUNTERCLAIMS FOR ATTORNEYS FEES

If a defendant counterclaims for attorneys fees, the RIAA will likely move to dismiss such a counterclaim, arguing that it is redundant since a successful defendant does not need to have interposed a counterclaim in order to collect attorneys fees. It plans to make a motion to strike the counterclaim in Elektra v. Schwartz. A similar motion by the RIAA in Oregon in 2005, in Elektra v. Perez, was denied. The RIAA has not been able to cite any legal authority for its argument.

COUNTERCLAIMS FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

The RIAA also moves to strike counterclaims for a declaratory judgment of non-infringement, arguing that they are redundant because a judgment dismissing the plaintiffs' case would imply non-infringement. Such motions were denied in Capitol v. Foster and Warner v. Stubbs in Oklahoma, and granted in Interscope v. Duty in Arizona. Such a motion was denied without prejudice in Atlantic v. Shutovsky in New York City. A similar motion is being made in Brooklyn in Arista v. Finkelstein.

The issue has now arisen again in SONY v. Crain in Texas, where the defendant -- an elderly Hurricane Rita survivor who never engaged in any file sharing, and who is defended by Legal Aid -- interposed a counterclaim for a declaratory judgment, and the RIAA moved to strike it. Ms. Crain's attorneys have pointed out to the judge that (a) the RIAA's similar motion, made in Capitol v. Foster, was denied, (b) the RIAA has no legal authority for its position, and (c) it is necessary to have the counterclaim because of the RIAA's practice of discontinuing the cases before trial, thereby depriving a defendant of the right to be vindicated on the merits. Similar motions are being litigated in Lava v. Amurao in Manhattan, Atlantic v. Boggs in Corpus Christi, Texas, and Arista v. Finkelstein in Brooklyn, New York.
The decision in Warner v. Stubbs, in Oklahoma, is pivotal. The defendant there interposed a declaratory judgment counterclaim, specifically reciting in the counterclaim that a reason for its necessity was plaintiffs' tendency to bring frivolous case and then withdraw them leaving defendant with no opportunity for a day in court. As if on cue, the RIAA moved to dismiss its own case and the counterclaim. The court dismissed the RIAA's case, but declined to dismiss the counterclaim, since it had an independent jurisdictional basis. All practitioners representing innocent defendants should take heed of Stubbs and be careful to interpose a counterclaim for declaratory judgment fashioned along the lines of the Stubbs counterclaim.

OTHER COUNTERCLAIMS

In Atlantic v. Andersen, in Oregon, a number of counterclaims for tortious conduct under Oregon law, including violations of computer privacy, and Oregon RICO, have been interposed. In Elektra v. Santangelo II, in White Plains, New York, a counterclaim has been interposed for breach of the duty to warn. In Lava v. Amurao, a "copyright misuse" counterclaim has been interposed.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.