Legal Question in Intellectual Property in New York

Re: res judicata

Whether you would be able to initiate a case now would depend on precisely what you alleged in the previous case. This kind of situation underscores the danger of bringing pro se and/or premature actions.

They can cause you great difficulty when an actual cause of action arises.

Re: res judicata

Unfortunately for you, his attorney is correct: a 12(b)(6) dismissal is a substantive dismissal on the merits of the case; your case is over and cannot be re-filed.

However, there are other avenues open to you.

(1) You can present your case to the US Attorney General and see if he'll go after this case as a criminal matter. That's a different cause of action based on the same facts (like when OJ was acquitted in criminal court (he can't be retried for the same crime, so he's free of the criminal aspect) but was found liable in civil court and has to pay forever to his purported victims' families; two causes of action, two different cases). If you choose this course, don't threaten it; just do it. You will not get civil damages out of this; assuming the AG decides to prosecute and wins, you will get the satisfaction of seeing your opponent in the federal penitentiary for several years.

(2) You can wait for another infringement to occur and go after that one with a huge vengeance in civil action -- with YOUR LAWYER at the helm this time.

(3) You can do the sensible thing and Move On, having learned the sharp lesson that lawyers are worth their weight in gold.

A pro se copyright action set you up for failure: the court has to work under its own rules, which are published, and which every lawyer spent at least a semester studying in depth; no lay person can hope to have mastered the nuances of the Federal Rules of Civil Procedure. A 12(b)(6) dismissal is just not something your lawyer would have allowed to happen.

Lawyers are professionals, just like doctors are. We went to law school and passed the state bar exam, just like doctors went to med school and passed the state licensing exam. We are required to keep up to date, just like the doctors are required to keep up to date. No one would attempt brain surgery on themselves; attempting pro-se high-stakes litigation is just as absurd. Properly presented and if the case were won, your remedies for copyright infringement could have been really significant, including injunction, $$$$$$$$ in damages, and possibly even an award of reasonable attorneys' fees; now, you are forever barred from re-filing the case. It's too bad.

Next time, hire the damn lawyer.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

Re: res judicata

Unfortunately for you, his attorney is correct: a 12(b)(6) dismissal is a substantive dismissal on the merits of the case; your case is over and cannot be re-filed.

However, there are other avenues open to you.

(1) You can present your case to the US Attorney General and see if he'll go after this case as a criminal matter. That's a different cause of action based on the same facts (like when OJ was acquitted in criminal court (he can't be retried for the same crime, so he's free of the criminal aspect) but was found liable in civil court and has to pay forever to his purported victims' families; two causes of action, two different cases). If you choose this course, don't threaten it; just do it. You will not get civil damages out of this; assuming the AG decides to prosecute and wins, you will get the satisfaction of seeing your opponent in the federal penitentiary for several years.

(2) You can wait for another infringement to occur and go after that one with a huge vengeance in civil action -- with YOUR LAWYER at the helm this time.

(3) You can do the sensible thing and Move On, having learned the sharp lesson that lawyers are worth their weight in gold.

A pro se copyright action set you up for failure: the court has to work under its own rules, which are published, and which every lawyer spent at least a semester studying in depth; no lay person can hope to have mastered the nuances of the Federal Rules of Civil Procedure. A 12(b)(6) dismissal is just not something your lawyer would have allowed to happen.

Lawyers are professionals, just like doctors are. We went to law school and passed the state bar exam, just like doctors went to med school and passed the state licensing exam. We are required to keep up to date, just like the doctors are required to keep up to date. No one would attempt brain surgery on themselves; attempting pro-se high-stakes litigation is just as absurd. Properly presented and if the case were won, your remedies for copyright infringement could have been really significant, including injunction, $$$$$$$$ in damages, and possibly even an award of reasonable attorneys' fees; now, you are forever barred from re-filing the case. It's too bad.

Next time, hire the damn lawyer.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.