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Another Victim Countersues RIAA Under RICO Act
Posted by
ScuttleMonkey
on Sun Oct 02, 2005 01:58 PM
from the racketeer-influenced-and-corrupt-organizations dept.
from the racketeer-influenced-and-corrupt-organizations dept.
devnulljapan is one of many users to let us know that another single mother is taking the fight to the RIAA. More than just standing up to them however, Tanya Anderson has decided to go on the offensive and countersue. In a move that aims to put the RIAA on the same level as your average organized crime syndicate the suit identifies violations of the Oregon RICO Act in addition to 'fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices.' Ms. Anderson has also demanded a trial by jury.
Related Stories
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News: Andersen Vs. RIAA Counterclaims Challenged 149 comments
NewYorkCountryLawyer writes "The RIAA is now challenging the counterclaims (PDF) in Atlantic v. Andersen, for Electronic Trespass, violation of the Computer Fraud and Abuse Act, Invasion of Privacy, Fraud, Negligent Misrepresentation, the tort of Outrage, Deceptive Business Practices under Oregon Trade Practices Act, and Oregon RICO, first discussed here in October 2005. The RIAA has moved to dismiss the counterclaims (PDF) brought by a disabled single mother in Oregon who lives on Social Security Disability and has never engaged in file sharing, this after unsuccessfully trying to force the face-to-face deposition of Ms. Andersen's 10-year-old daughter. Ms. Andersen's lawyer has filed opposition papers (PDF)."
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News: RIAA Drops Tanya Andersen Case 164 comments
NewYorkCountryLawyer writes "After 2 years, the RIAA has finally dropped its longstanding case against disabled single mother Tanya Andersen in Oregon, Atlantic v. Andersen. The dismissal (pdf) relates merely to the RIAA's claims against Ms. Andersen, and does not relate to her (a) claim for attorneys fees or (b) counterclaims against the RIAA, which are presently before the Court on a motion to dismiss. The counterclaims were first interposed in December 2005. This is the same case in which the RIAA insisted on taking a face to face deposition of a 10 year old girl. Prior to the case, neither the mother nor the child had ever even heard of file sharing."
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Introductory sentence (Score:5, Insightful)
Is this really true? If you use P2P to share original works of art (nothing is stopping you from doing it) - for instance a personal flickr - or to share legitimate files like Linux distros, why would you really care about someone fighting the RIAA regarding copyright issues? This doesn't really seem like a P2P issue, but rather a copyright infringement issue.
Re:Introductory sentence (Score:5, Informative)
Even if you are sharing legal items, RIAA is making it harder to do so on p2p networks.
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Re:Introductory sentence (Score:5, Interesting)
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You are wrong about mp3.com (Score:5, Informative)
Usurper_ii
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MP3.com sues lawfirm over "bad advice" (Score:5, Interesting)
Law.com [law.com] is reporting that MP3.com [mp3.com] has filed a malpractice lawsuit again Cooley Godward [cooley.com] , a law firm, alleging that it was responsible for allowing MP3.com to launch and subsequently be sued for copyright infringement by giving bad advice on the legality of My.MP3.Com ( MP3.com Sues Cooley Over Legal Advice [law.com] ). The charges are quite loaded, alleging that Cooley was basically inept their legal analysis of fair use and other copyright doctrines, and perhaps even misrepresented to MP3.com about expert testimony the Cooley firm had secured.
This isn't a small lawsuit either. MP3.com wants $175
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Re:MP3.com sues lawfirm over "bad advice" (Score:5, Informative)
This isn't a small lawsuit either. MP3.com wants $175 million.
Here's the relavent quote from the original article:
The suit, MP3.com Inc. v. Cooley Godward, 266625, says MP3.com has paid out in excess of $175 million in settlements, judgments and legal fees.
I thought the same things probably everyone else did, wondering if that was sarcasm or MP3.com being silly; so I actually looked (holy shit someone RTFLink on
~Rebecca
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Re:Introductory sentence (Score:5, Insightful)
I'm more wondering about the "slippery slope" of this approach by Limewire. There is nothing in any law, copyright or otherwise, that requires you to provide a license to share your own works. In fact, this action tends to remove rights from copyright owners, who will now be forced to provide some license with their works if they want to distribute their works this way. Granted, they can chose not to use Limewire, but if this catches on in P2P in general then there is little choice left (hence the "slippery slope). I hope it doesn't catch on.
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Re:Introductory sentence (Score:5, Insightful)
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Re:Introductory sentence (Score:5, Insightful)
No, as you correctly note it isn't really true. Reading the article shows that Ms. Anderson is stating she has never been a file sharer and has never used P2P software. By definition then, this case is not "the case P2P file sharers have been waiting for" as it is not involving the rights and wrongs of P2P.
Cheers,
Ian
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Re:Introductory sentence (Score:5, Insightful)
Maybe.
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Re:Introductory sentence (Score:5, Insightful)
Downloading copyrighted material from P2P is a vastly different issue from ripping a CD that you own, or taping a television/radio/cable/satellite/Etc. broadcast. The the latter is explicitly permitted by the law under the home taping act, and the precedent of the Betamax Supreme court decision. Time shifting, (the ability to watch/hear a program when you want rather then live as it airs) transfering to new media, (Eg, making tapes for your car from LP's, CD's or even 8-track cassettes, as well as recording and encoding to MP3/AAC/Ogg Vorbis for use on your PC or other portable media device, (iPod, Creative Nomad or Zen, PSP, Yada yada...) and making working copies, to protect the original) are all accepted rights of consumers under the doctrines of fair use, and home taping act.
point is:
Having MP3's is not illegal
ripping your CD's is not illegal
P2P file sharing of copyrighted material has not yet been fully tested by the courts yet, so your guess is as good as mine.
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Re:Introductory sentence (Score:5, Insightful)
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Re:Introductory sentence (Score:5, Insightful)
Further, it would appear from the counterclaims that MediaSentry may have been engaged in some highly shady and legally dubious behavior of its own (e.g. perhaps browsing people's computers without permission and using what they find, even if its non-p2p related, to "encourage" settlement. Maybe they've been doing so using default Windows shares, rather than Kazaa or other p2p sharing features. Who knows?). If this is the case, then many of the RIAA's claims about p2p filesharing may themselves be called into doubt. Again: something from which P2P users would benefit.
Ultimately, P2P users will benefit if the RIAA's terror campaign gets shut down. Ironically, given the fact that the record companies are seeing some record profits even as filesharing goes up, so may the record companies.
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RIAA vs. P2P ... (Score:5, Interesting)
RIAA wants P2P networks shutdown due to these copyright issues.
Universities and other organizations block P2P because of these same copyright issues, under pressure from lawsuit threats by the RIAA.
===
The RIAA is a threat to P2P, even if you are just sharing original works of art.
Legal users may not have as much of an interest in seeing RIAA get a punch to the kidneys, but there is still some cause for interest, I'd say.
[Legal uses of P2P filesharing are an innocent bystander, but they still will get gunned down with illegals]
(( this coming from someone who had his access removed at a university for sharing the Project Gutenberg DVD on eDonkey ))
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Re:RIAA vs. P2P ... (Score:5, Insightful)
even if they were broadcasting ORIGINAL music, they still have to pay the RIAA. (or some copyright cartel front group).
no music has fallen back into the public domain in over a century and even if some do (like some of elvis' songs in Europe) they won't allow people in other countries to obtain that music.
a big F U to the aholes in the RIAA/MPAA/Software cartels.
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Re:Introductory sentence (Score:5, Insightful)
The problem with this is I personally like bittorrent (just one P2P method) and hope to see it incorporated into many other programs, particularly online gaming. This would make downloading the typical 150mb patches much easier than "waiting in line 20 minutes" at the typical gamer site, while being pounding about subscribing.
I also use it to download Linux and BSD distributions, as well as other software, legally. There are often bittorrent links here on slashdot for videos, etc. from sites who don't have the bandwidth to stand a slashdotting.
The real pisser is they are using flatly illegal tactics to do this, first by spying on people, second by extortion. Copyright infrincement isn't a crime, it's a matter for the civil courts. What the RIAA is doing, however, IS criminal in all 50 states.
They are wholesale extorting money from people, with no physical evidence, and using a threat of litigation to make them give money. An amount that is cheaper than a retainer for a lawyer, I might add, to insure it is "in their best interest" to just comply and fork over a few thousand to make the problem go away. This is akin to the mob selling you "insurance, so no one will burn your house down". If the FIAA was actually interested in justice, they would allow the cases to actually go to court, instead of hiring some collection agency goons.
Saying the RIAA is worried about the musicians being denied royalties is like saying SCO wants to protect their intellectual property. Yes, you can say it, but we both know its a load of crap. Like SCO, they just see this as both a way to prevent people from competing with thier distribution, and make a few bucks on the side.
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Put them??? (Score:5, Funny)
How can you 'put' something where it already is?
It only takes a few... (Score:5, Interesting)
Re:It only takes a few... (Score:5, Insightful)
If any of these cases against the RIAA are successful... I think we'll see many more people standing up to them.
Once you can prove that Goliath can be felled with just a sling, everyone wants to be David.
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Re:It only takes a few... (Score:5, Insightful)
As overrated as your comment is, I will bite:
So they should go after Bram Cohen, the creator of bittorrent, because "everyone knows there is no legitimate use for bittorrent", right? Or go after eDonkey creator Jed McCaleb. After all, it's not the users responsibility, its the creator. Just like if you shoot me with a
Of course, there are more than a few legitimate uses for P2P software. This is like going after Linus Torvalds, Richard Stallman, and Bill Gates, because they created and contributed to the operating systems that allow computer crimes to happen in the first place.
I mean, if there was no operating systems, there would be no computer crime, right? Just like if no author made P2P software, no one would illegally share files. (um, I am being sarcastic if you haven't caught up yet...)
They can go after the people who are infringing their copyrights, but they are currently breaking more laws than the users by intentionally breaking and entering into their computers (and perfectly innocent people's computers) and using extortion against people who think may have infringed, without providing any proof.
If you people learn one thing today, make it this: COPYRIGHT INFRINGEMENT IS A CIVIL MATTER, NOT A CRIME. Spying on people and extorsion, however, IS a crime.
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You go girl! (Score:5, Interesting)
Reason: I really don't like Metallica, at all. (simple!)
There is still an outstanding debt to these people, and it's still in collections. I hope she sets a precedent (which involves tying several statutes together) by winning.
In recent weeks I've read more and more about the RIAA and the MPAA. I think they should help the tobacco industry run new campaigns... the tobacco guys could learn a thing or two from these greedies...
Re:You go girl! (Score:5, Insightful)
I mean, if it's that easy, I'm going to go get collection action started against a few hundred people and make some quick cash. Who needs a job.
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Re:You go girl! (Score:5, Informative)
Unless you have agreed to a settlement, or a court has entered a judgment against you, you have no outstanding debt. The RIAA at best has an outstanding claim against you.
This is an important distinction. If the claim has been reported to Experian, Equifax, TransUnion, etc., you can have it erased by following the dispute procedure outlined in sec. 1681(i) [cornell.edu] of the Fair Credit Reporting Act. Remember, this is not a disputed commercial transaction where someone can even allege the existence of a contract -- this is a private attempt to collect a penalty in the form of a 'settlement'. If neither you nor a judge says that the 'debt' exists, it does not exist.
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Re:You go girl! (Score:5, Funny)
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Re:You go girl! (Score:5, Funny)
Oh no. It's really quite simple. First of all, we have to determine how many equilivent tracks you have. To play a MP3 file back on a PC, you need atleast a Pentium 75Mhz. The typical home computer is about 2400Mhz. 2400 divided by 75 is 32. That means when you listen to a MP3 file on a typical home computer, it is equilivent to listening to it 32 times. Now, the Black album by Metallica has 12 tracks, and we have to assume you have all 12 tracks on your computer, so 32 times 12 is 384 equilvent tracks. Now, it is common for a computer to have two optical drives, so we must double that to 768 equilivent tracks because it is possible to have two burned copies of the song in the computer at the same time! But that's not all, surround sound setups are becoming more common. Most surround sound setups are 5.1 - that means whenever you play back the MP3 file it is coming out of no less than 6 speakers, so we have to multiply 768 by 6 to get 4608 equilivent tracks. Now, to convert those equilivent tracks to a dollar amount, we have to determine the market value of an equilivent track. Luckily, that is easy, as iTunes sells that very track for $0.99. $0.99*4608 is $4562. Now, we have to add in the retail value of the CD ($18), and the retail value of the CD single for the track ($3) - which brings the total up to $4583. I hope this clears things up a little.
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Make the records open! (Score:5, Insightful)
In an age when the common people are routinely intimidated and threatened by corporations whom they cannot possibly afford to face in a court of law, one can't help but believe that justice is dead.
Re:Make the records open! (Score:5, Informative)
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Actually, it's not Oregon (Score:5, Informative)
"Under RICO [wikipedia.org]", a person or group who commits any two of 35 crimes--27 federal crimes and 8 state crimes--within a 10-year period and (in the opinion of the U. S. Attorney bringing the case) has committed those crimes with similar purpose or results can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and/or sentenced to 20 years in prison. In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of "racketeering activity." The act also contains a civil component that allows plaintiffs to sue for triple damages."
So for everyone in every other state in the Union, sue away!
Some of this is Nonsense (Score:5, Interesting)
may be true - it may be a genuine mistake, but the second argument I really doubt. I believe that the RIAA does not do any more than search public P2P search engines for their copyrighted content, and her argument that this searching is trespass to chattels is nonsense.
That being said, I would blame her lawyer, not her personally. But still, it's hard to know how seriously the RICO allegations should be taken, or whether they're just a way to make the case a pain for the RIAA.
Re:Some of this is Nonsense (Score:5, Interesting)
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Re:Some of this is Nonsense (Score:5, Interesting)
If I say "I just killed your Father, John Doe, and now I shall kill you if you don't do what I want." and your father is actually missing, then I am in a pretty bad legal position even if I didn't actually kill your father.
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Shots Across the Bow (Score:5, Insightful)
While we may all feel that the RIAA has all all the trappings and actions of the Soprano crew, somehow I don't think that particular claim is going to wash with the the courts. On the other hand, it is out of the books of law enforcement in terms of hitting the accused with a large number of charges, most of which get thrown out, but some stick. Enough to make it worthwhile to go to court. This is a civil case, but the idea is the same.
The interesting thing to me is that is a sign of the RIAA cases startng to get out-of-hand from the RIAA's point of view. People are counter-suing, and now with omnibus claims. Rather than backing down against their legal might, some people are starting to fight back and they run the case of making sympathetic figures of those they are going after and making themselves out to be bad guys to the general public. Up to now, all the publicity in the mainstream has gone for the most part, the RIAA's way. This type of thing if it continues can harden the general public against the RIAA making their present tactics counter-productive. And as a by-product, can make it harder to find sympathetic jurors and judges to their cause.
The big fear I would have if I were the RIAA, is that sooner or later unless they change tactics, they could face class action lawsuits.
This is a nice shot across the bow of the RIAA.
RIAA violating DMCA? (Score:5, Interesting)
Couldn't that be construed as a violation of DMCA? And while we're at it, who gave MediaSentry the authority to conduct an electronic wiretap?
I sincerely hope that Ms. Andersen's countersuit is successful and MediaSentry is forced out of business as a result of the damages awarded.
No (Score:5, Informative)
Breaking into computers in order to spy on people is not a violation of the DMCA; it's a violation of the Computer Fraud and Abuse Act (as it says right in the article).
And while we're at it, who gave MediaSentry the authority to conduct an electronic wiretap?
There's no evidence that they conducted anything resembling a wiretap, nor is there evidence that they broke into any computer. That's not how these P2P monitoring companies generally work (since it's so obviously illegal). They just observe which IP addresses are sharing which files. That's not a wiretap.
The RIAA's lawsuits are bad, but this countersuit appears to be overreaching in the opposite direction.
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Knuth, Justice and the American Way (Score:5, Funny)
Ouch. (Score:5, Funny)
Like there's a GOOD week to be an RIAA exec. :)
Might be something (Score:5, Insightful)
Hopefully the industry will get bitch-slapped by this. If this lady were to win, then people the RIAA has "successfully sued" might ban together and sue the RIAA. It could potentially get really messy for the RIAA.
The industry basically needs to realize that their products are too expensive, and that the quality is not as good. They need to really get behind the legal download model, such as iTunes rather than making innuendos about "decapiting" it.
Re:Might be something (Score:5, Insightful)
Actually, industry does not want *any* downloadable music model, regarless of the price.
Why? Because it cuts into their business, which is selling shiny discs.
When people become accustomed to downloading music (and doing it legally), then the RIAA no longer has their distribution stranglehold. If you're a musician, there used to be only one way to reach a global audience - with the advent of P2P, that's no longer the case, and the RIAA is dancing as fast as they can to distract people from the truth.
They want people to think "downloading==illegal", because it opens them up to competition.
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Not Fraud? (Score:5, Interesting)
Next step is to send them a letter... (Score:5, Funny)
And the biggest Irony... (Score:5, Insightful)
The recording industry and RICO (Score:5, Funny)
- Well documented widespread use of drugs among execs and performers
- Alleged extensive use of bribery to ensure air time
- Women singers expected to look like prostitutes
- Male performers expected to look like and behave like violent criminals
- Large output of music advocating abuse of women, carrying and use of guns to settle disputes, drug taking and attacks on police.
In what way are the members of the RIAA NOT like organised criminal and racketeers?Re:The recording industry and RICO (Score:5, Insightful)
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Just to give myself credit... (Score:5, Insightful)
http://slashdot.org/comments.pl?sid=77984&cid=692
I should be a lawyer.
RIAA spyware (Score:5, Interesting)
"10. When Ms. Andersen contacted Settlement Support Center, she was advised that her personal home computer had been secretly entered by the record companies' agents, MediaSentry."
15. An employee of Settlement Support Center admitted to Ms. Andersen that he believed that she had not downloaded any music. He explained, however, that Settlement Support Center and the record companies would not quit their debt collection activities because to do so would encourage other people to defend themselves against the record companies' claims.
This is assuming all her statements are true and what she claims the RIAA agents said is also true.
It would be nice for her if she recorded her calls, after telling them she was recording it, to the RIAA Collection Center, I mean "Settlement Support Center" and getting their statements in writing couldn't hurt.
She claims to not like "gangster rap" and that MediaSentry, oh look we finally have a name for the IP bounty hunters, hacked/secretly entered her computer. So do the files exist on her computer or not? If she has no interest in it then the files should not be there unless downloaded by some spyware they infected her with or the files don't exist and MediaSentry lied and made up the list. And they tell her that even though they believe she is innocent they cannot drop the case because it would be an admission of error, either way it doesn't look good for the RIAA.
And what's with IP address being IPA? IP=Internet Protocol NOT Intellectual Property. Intellectual Property = Intellectual Property, Intellectual Property != IP! greedy bastards
Re:Boo! (Score:5, Interesting)
I wonder how much money the RIAA has made off of this for the labels. They seem to be police, judge, jury, and collections for profit. I wonder how much of their record profits are from these lawsuits.
Well, I know the RIAA has helped me. I have purchased no new media in over a year now (never downloaded it). And it has helped the local band scene as many people I know go watch the bands and purchase the CDs where the bands play rather than feed the beast. Overall it is less expensive and I have made more friends.
My kids, and many of their friends are growing up on live performances from local artists. We have been to Beef and Board (a very *nice* playhouse), the local small playhouses, the parks, ethnic presentations, and much more. I never could have forced them to go to these things until the RIAA (and now MPAA) stepped in. I never thought I would live to see the day where the labels would make that happen.
InnerWeb
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Re:Most biased Slashdot article ever? (Score:5, Insightful)
I'm not sure whether or not you mean to imply that illegal file sharing=artists not getting paid, but this does open the door to an interesting conversation I had recently with the former president of a prominent record company (retired about a year and a half ago). He told me several interesting things:
1) Most musicians don't do very well at all in their dealings with record companies. In general, under the current regime, the money doesn't go to the artists.
2) File sharing isn't damaging the record companies. This fact is also borne out by the record profits record companies are now reporting, despite the fact that file sharing has increased substantially over the last couple of years, and the fact that record companies are actually releasing fewer records.
3) Record companies could be making use of file sharing as part of major new business models. The biggest problem, though, is that most heads of record companies are out-of-touch old men who not only don't have a clue about the technology, but they barely have a clue about music in the first place.
To sum up, I'm not sure where you were going with your comment, and I'm also unsure as to why you think it's "biased" to claim the record companies' actions amount to legalized extortion, especially when it appears they may have been going after people with very little, if any, evidence of actual infringement. But I'll leave elaboration on those points to you.
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Re:Most biased Slashdot article ever? (Score:5, Insightful)
And look at what the record companies are trying to do... control the retail price and threaten this new business model by pulling out.
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Re:Most biased Slashdot article ever? (Score:5, Insightful)
You've voluntarily opted to give up all credibility with this comment. Typical preaching from the top of the mountain bunk.
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Re:Most biased Slashdot article ever? (Score:5, Insightful)
Are you even employed in an industry which has an employee agreement? If not then you've instantly lost all credibility in this thread.
Even 9-to-5 jobs require an employee agreement and, unless you're financially wealthy enough to be able to afford to turn them down, there's nothing you can do but accept an unfair agreement.
I'm not a bleeding heart for the artists. I do recognize that the media industry, as a general rule, is fleecing the artists blind and deserve none of the protections warranted by a responsible member of society.
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