Andersen Vs. RIAA Counterclaims Challenged

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)."

What a Catch-22!

If she doesn't allow her daughter to give a deposition, she'll face another charge but if she exposes her daughter to lawyers, she'll definitely face negligence charges!

RIAA put its foot in a trap.

It will be interesting to see how much of its leg must be knawed off.

Re:RIAA put its foot in a trap.

Hopefully they don't stop gnawing until well past the head.

Anonymous Coward, dead at 15

I just read some sad news at the Register. Anonymous Coward, long-time Slashdot poster, has passed away at the tender age of 15 from RSI. He was undoubtedly the most prolific poster on Slashdot by a wide margin, a record which will no doubt live on into eternity. Even if you didn't appreciate his endless posts, flames, frist prosts and wide range of viewpoints, there's no denying his contributions to the Slashdot comment sections. Truly an internet icon.

RIAA says, "Mission Accomplished!"

The summary is exactly what the media conglomerates want burned into every American consumers brain.

Fear anything that is not authorized or offered to you by the media conglomerates.

If Dave Barry were here . . .

The "Tort of Outrage" would be a great name for a band.

Re:If Dave Barry were here . . .

I was thinking it sounded like a delicious dessert!

"I'll try the death by chocolate...oh, wait, the tort of outrage looks yummy!"

Re:If Dave Barry were here . . .

I was thinking it sounded like a delicious dessert!

"I'll try the death by chocolate...oh, wait, the tort of outrage looks yummy!"

Sorry son, you don't get any dessert until you've finished your Grapes of Wrath.

Re:

Sour Grapes of Wrath

Re:If Dave Barry were here . . .

But Dad, you told me I was going to get my Just Deserts!

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Then, there's the torte made with Limburger cheese: the torte of public nuisance.

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Hah! Accidentally read that as Limbaugh cheese. Public nuisance, indeed!

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"I'll try the death by chocolate...oh, wait, the tort of outrage looks yummy!"

Oh... you said death first!

Oh, alright. Give him "tort of outrage"

Just be glad I'm not Church of England.

Consider Your Music Library

If you don't have more indy bands, go get their stuff!! Pay artists directly!
Why support RIAA by buying their music, when they are using YOUR MONEY in a way that is morally wrong?

Re:

Well that's the point, isn't it. How much of a failure do you call it, when in a commodity market you create a movement of customers who specifically try to avoid your brand of goods?

Because I'm Evil

And lazy.

Re:Consider Your Music Library

(but yours is still smaller, wow!)

Only on Slashdot....

Re:

The iTunes store has plenty of indy music. It's just not advertised on the front page, so you have to know what you're looking for.

Naaw.. i thought they'd just sit back and take it.

This should be filed under the DUH tag.

If someone accuses you in civil court and you stand to lose more from the judgment than you would from the defense, you defend yourself.

I dont know anyone who would do any different.

what is important is what is yet to

criminal charges?

As I understand it, the RIAA ADMITS to having entered Ms.Andersen's computer without her consent. Is this not a criminal offense? Has a criminal complaint been brought?

Re:That's not what it says.

As I understand it, the RIAA ADMITS to having entered Ms.Andersen's computer without her consent.

That's what Andersen's lawyer alleges, but I can't find anywhere that the RIAA says so. My understanding is that the RIAA simply tracks IP addresses and then sues whoever was using the address at that time. It was the Settlement Support Center that made it look like they had more than that. Their arm twisting tactics certainly made it sound like the RIAA had broken into Ms. Andersen's computer. But, if they had done that, they would have known she wasn't downloading any files.

What seems to be going on here is that the lawyer is taking the RIAA at their word and leveling the charge based on what the RIAA -- or rather, the Settlement Support Center acting as their agent -- actually said. They claimed to have "seen" her downloading and "knew" the files were on her computer. Really? Well, how did they know that? MediaSentry has never disclosed their methods of information gathering, so there's no information coming from that quarter. They must have broken into her home computer to obtain those sorts of files, right?

This puts the RIAA between a rock and a hard place. Either they can admit that they broke into her home computer, or they can admit that they were lying about that bit. Of course, if they admit they never really had any evidence in the first place, that strengthens the other claims against them.

No wonder they want the counterclaim dismissed.

Say what?

Spelling mistakes are mine:

As part of this campaign, these record companies (...) retained MediaSentry to illegally investigate and purportedly invade private home computers and collect personal information. Based on private information allegedly extracted

Re:

Oh, it gets explained further on.
Here's a pic of the explanation:
http://i17.tinypic.com/352g7jp.jpg [tinypic.com]

Claiming that sniffing around the P2P network by a non-legit peer is somehow an action that requires consent... I'm not buying it. Especially not the concept

thinkofthechildren

Really. I can accept making a 10 year old testify as a witness in a murder case, to prevent the killer from striking again. But in a civil copyright case, in which she, as a minor, is not even accountable? Give me a break! The lawyers and executives involved should be charged with attempted harm to a minor.

Re:thinkofthechildren

There's nothing special about children that prevents people from having them testify in legal proceedings. So long as they, like anyone else, are able to understand that they need to tell the truth, they can testify. Also, minors can be found liable for copyright infringement. There's nothing special about them in that regard either.

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Also, minors can be found liable for copyright infringement. There's nothing special about them in that regard either.

How about having no money? "Blood from a stone (or turnip)" and all that?

But kidding aside, I can't see why a child could be liable fo

Re:

But kidding aside, I can't see why a child could be liable for laws they have no say in. I'm sure there's a legally great reason, but not a morally good one.

Are you suggesting that children can kill people at will because they don't get to vote? How about

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As to the monetary issue, parents are responsible for the financial debts of their minor children with few exceptions.

Actually one very big one. Copyright, where in the parents have no legal requirement to pay. All that has to be done is the copies destro

Re:thinkofthechildren

Are you suggesting that children can kill people at will because they don't get to vote?

Totally, man. Then I'll send my army of immune child assassins to clean up Slashdot. Then the world! I'm king of the world, and there's nothing you can do to stop me with my tiny army!!!! Mwuhahahhahahahaha!!!

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"So long as they, like anyone else, are able to understand that they need to tell the truth, they can testify. "

yeah.. sadly minors often consider telling someone what they think they want to hear is the same as truth.

Putting a minor on a stand has to be l

Re:

I'm not sure the GP poster was arguing about the legal status, but rather the ethical one.

On the one hand, someone too young to understand that something is wrong and the negative consequences of doing it clearly should not be punished for their actions.

Legal or Illegal?

So, was the seven year old girl (at the time) doing legal activities... or rather, are illegal activities made legal when you are young?

It's interesting to think about. I don't necessarily like the RIAA :P But let's say she got drunk and drove around in a car. That's illegal, too. Should she not be prosecuted at all because, after all, she's only 7?

I fully realize that's an outrageous comparison. But a few things strike me as seeming to go unnoticed in most of the "RIAA is the devil incarnate!" discussions.

• Parents don't seem to care what their kids do, unless they are caught. Of course, since there's a huge push for kids being allowed to do whatever they want and that parents shouldn't force any sort of morals on their kids and stuff like that, it just makes sense. But seriously, parents should know what their kids are doing.
• Whether or not you like the RIAA, pirated music IS illegal, is it not? Whether or not this is a good way to go about catching illegally pirated music, that does not get rid of the fact that pirating music is illegal. Whether or not you're seven years old. Drunk driving is illegal at age seven, pirating music is illegal at age seven. Typical laws don't change based on your age. Punishment might, and culpability might to some degree, but it's not like you have to be 21 or older to illegal pirate music. Copyrights apply to minors.
• While the RIAA is consistently criticized (and perhaps rightly so), very few suggestions are made for protecting copyrighted music. I happen to be a musician (well, composer) and copyrights can be a rather helpful thing, because there are people that will steal and even promote it as their own, taking royalties or sales or whatever you like. Enforcing copyrights is something we have to do, we can't rely on "good human nature" because that fails quite a bit, regardless of your particular anthropological views.

Re:

The difference between the two cases is the difference between criminal and civil law. The RIAA lawsuits are a matter of civil law. Civil law treats minors very differently than criminal law. For one, minors can't be held to a contract, because it is il

Re:Legal or Illegal?

The difference between the two cases is the difference between criminal and civil law

I haven't honestly been paying much attention, but are they alleging criminal copyright violation as well?

506. Criminal offenses

(a) Criminal Infringement. - Any person who infringes a copyright willfully either -

(1) for purposes of commercial advantage or private financial gain, or

(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

Although this must be a civil case, I just want to raise the point that a minor could indeed be guilty of criminal copyright infringement. Illegally selling a copy of one song is a criminal act. Or distributing more than $1,000 worth of copyrighted materials in a 180 day period, of which there are only two and a bit in a whole year. That wouldn't be particularly hard.

I do have to wonder how the calculation of value works on a bittorrent network. If I distribute 5% of a copyrighted work, do they count that as a full distribution? Or am I only liable for 5% of its value? I can only imagine what the RIAA would ask for, but what has actually happened in court?

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"It's interesting to think about. I don't necessarily like the RIAA :P But let's say she got drunk and drove around in a car. That's illegal, too. Should she not be prosecuted at all because, after all, she's only 7?

No, she should not be prosecuted specifi

Re:Legal or Illegal?

Copyright infringement is *not* a criminal offense. Your analogy is flawed.

Re:

It's interesting to think about. I don't necessarily like the RIAA :P But let's say she got drunk and drove around in a car. That's illegal, too. Should she not be prosecuted at all because, after all, she's only 7?

(I know you're being rhetorical.)

I can

Re:

...are illegal activities made legal when you are young?

No, but for the most part you cannot be held responsible for doing them. There is a relationship between responsibility and rights that seems sadly overlooked by our educational system. If you do not have legal protection for freedom of speech, then it

Re:

So, was the seven year old girl (at the time) doing legal activities... or rather, are illegal activities made legal when you are young?

The problem with your whole argument is that you accept the RIAA's statements as fact when they are in dispute. No one

Time for a barratry prosecution against the RIAA

Barratry [ceb.com] is a criminal offense in California.

From the California Penal Code: [ca.gov]
158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000).

159. No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy.

Barratry prosecutions are almost unheard of, but there was one in 1988 in California and it was affirmed by an appeals court. The RIAA's activities seem to qualify. "Exciting groundless judicial proceedings" - check. "At least three instances" - check. "Corrupt or malicious intent to vex and annoy" - requires proving intent, and in this last case, that can probably be shown.

Do we need to know every time the RIAA farts?

Seriously. It's already been brought up many times that finally, here's someone who's taking a stand and counter-suing the RIAA.

What did you expect the RIAA to do? Roll up in court and say to the judge "Actually, your honour, they're quite right, we're a

Re:Why?

These things are front page news because they have the potential to define the future for media and, more importantly, technology related to the internet. These RIAA actions can and probably will have a very big impact on exactly how data can be accessed across networks, draw lines in fair use, define or rewrite copyright as it pertains to electronic media, and maybe even have internet laws written/rewritten as a byproduct. DRM, anyone? I find many of the big stories have little nuances that may very well effect different segments of the above mentioned.

News for nerds. Stuff that matters.

Besides: If you're not interested, it's as simple as not clicking on the article.

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it's as simple as not clicking on the article.

Most Slashdotters don't have any trouble not clicking on the articles.

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Is every procedural hiccup in these cases "newsworthy"?

For one thing, not every case the RIAA is pursuing is being covered here. While I can not authoratively state that every motion in this case is being reported here, I would highly suspect that is the c

Because.

They are trying to set a precedence that runs in their favor.

This will affect everyone in the United States, even you. If you don't live in the US, I'd still be worried if I were you. We've all seen how the US "exports" it's policies (Pirate Bay, anyone?).

In some ways this is a simple case of stopping the idiocy now.

Re:Because.

...and offer 95% illegal material...

The site was not offering anything illegal, nor were they providing anything illegal.

Where they are(were?) located what they were doing WAS NOT ILLEGAL.

They had ALL THE MORAL GROUND there is, what ground did the *iaa have to persecute them ILLEGALLY?

The RIAA demonstrated they know little about how bitTorrent works.

Re:Why?

Last week I swear there was a "story" about a routine DISCOVERY order. . .

So you consider requiring a high school student to give a deposition [blogspot.com] with less than 24 hours notice - and on a school day, no less - a "routine DISCOVERY order?"

Slashdot may be giving a lot of attention to these stories, but the corporate media is virtually ignoring them, or presenting them from the point of view of the recording industry. If you think the RIAA challenging the counter-claim is not news, fine. That doesn't mean the rest of us are not interested.

Why is it people feel they need to complain when a story they don't think is "worthy" appears on Slashdot? Are you paying by the bit or what? I scroll past plenty of articles I am not interested in. Sometimes, I even visit other sites.

Re:

Because 'news for nerds' had a very specific type of nerd in mind and that has evolved into 'news for whatever as long as someone is nerdy about it'

Re:Why?

Dear Mr. Coward, this is extremely important because the outcome of this motion could determine whether the RIAA can afford to keep on harassing people or not. If these counterclaims hold up... or even some of them... the RIAA is dead meat, because almost everything that happened to Ms. Andersen happened to most of the other RIAA lawsuit victims, and all of the present and future defendants will begin asserting similar counterclaims.

A second reason that it is important is that Ms. Andersen was the first person to seriously interpose aggressive counterclaims against the RIAA based on the RIAA's own misconduct.

If Tanya Andersen wins this round, the RIAA will be on the defensive all across the country.

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... a disabled single mother in Oregon who lives on Social Security Disability ...

How is her condition relevant to the case?

She claims her disabling medical condition was worsened by the stress imposed due to the illegal actions of the RIAA's agents. As