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The 83-Year-Old Dead File Swapper
93,000 writes "Gertrude Walton, a deceased eighty-three-year-old woman, was named as the only defendant in a federal lawsuit filed by a group of record companies. They claimed Walton made more than 700 pop, rock and rap songs available for free on the Internet under the screen name 'smittenedkitten.' Needless to say, the suit has since been dropped."
Gertrude Walton of Fayette County hated computers, her daughter said.
That did not stop the recording industry from accusing the now deceased 83-year-old Mount Hope woman of illegally trading music over the Internet.
More than a month after Walton was buried in Beckley, a group of record companies named her as the only defendant in a federal lawsuit. They claimed Walton made more than 700 pop, rock and rap songs available for free on the Internet under the screen name "smittenedkitten."
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On Thursday, a spokesman for the Recording Industry Association of America acknowledged that Walton was probably not the smittenedkitten it is searching for.
"Our evidence gathering and our subsequent legal actions all were initiated weeks and even months ago," said RIAA spokesman Jonathan Lamy. "We will now, of course, obviously dismiss this case."
Walton's daughter, Robin Chianumba, lived with her mother for the last 17 years of her life and said her mother objected to having a computer in the house. Chianumba said she didn't know anything about the record company's claims. And she said she does not know anything about the screen name.
"My mother was computer illiterate. She hated a computer," Chianumba said. "My mother wouldn't know how to turn on a computer."
The case demonstrates the imperfections of the record industry's two-year old effort to hunt down and sue people who put hundreds, even thousands, of copyrighted songs onto file-sharing networks on the Internet.
The industry tracks down file-swappers using the Internet Protocol addresses attached to their relatively anonymous screen names.
The IP addresses are useful because they identify computers on the Internet. But investigators cannot use the numeric codes to figure out who is using a particular computer. Often, they can only use the IP address to learn who is getting billed for the computer's Internet service.
In more than a handful of cases, the record industry has sued a person for file-swapping, then later learned that they were really after the defendant's child or grandchild.
Chianumba said she faxed a copy of her mother's death certificate to record company officials several days before the lawsuit was filed. She said she did that in response to a letter from the company regarding the upcoming legal filing.
"I believe that if music companies are going to set examples they need to do it to appropriate people and not dead people," Chianumba said. "I am pretty sure she is not going to leave Greenwood Memorial Park [where she is buried] to attend the hearing. I don't know if this is a scheme to get money, I just don't know what's going on. I am concerned."
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When Walton died on Dec. 11 after a long illness, she was survived by eight children, 24 grandchildren and 23 great-grandchildren, according to her obituary.
Could smittenedkitten be one of them? The RIAA declined to say.
To contact staff writer Toby Coleman, use e-mail or call 348-5156.
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I don't think anyone's been convicted of anything yet--people have only settled out of court, right?
You're confusing civil and criminal law. This was a civil case. Criminal cases have convictions and acquittals. Civil cases have judgments for either the plaintiff or defendant.
In reality, this has done nothing to militate against the RIAA's potential success in future lawsuits. This is actually the equivalent of settling out of court, albeit very early on in the process and with no money paid by the defendant.
http://www.wacotrib.com/opin/content/news/opinion/ stories/2005/01/14/20050114wacnethaway.html
Faxing a death certificate looks like a simple, reasonable, step.
Although corporations own nearly every facet of American life, we are still free to ignore correspondence from them. Subpeonas are still necessary to compel a response.
It's simple: I demand prosecution for torture.
This was a civil, not a criminal case. In the event that the RIAA had won the case, any judgement would have been awarded against the defendants estate. You don't need to be alive to be sued in civil court.
The RIAA didn't need to drop the case just because the defendant was dead.
However, this was mostly a PR case. The lawsuite was not filed with the purpose of recovering damages. The real reason they filed the case was as a PR suit to make an example of the person and with the person being dead, the only PR results would have been to make them look like bigger scum than they already do. That's why they withdrew the case.
Mmmm.. Donuts
I had assumed that she was the executor of the estate, otherwise, you (and other posters) are correct in that there was no compelling reason for her to respond.
As for not having to respond, without a summons, this is likely true, but I still think that a judge would not look favorably on a defendent that could have taken simple steps to try to make a suit "go away".
Yes, the plaintif has to go through due process, and would have found out that the defendent was deceased when attempting service. But, having done so, might be motivated to sue the estate upon seeing a non-cooperative defendent. (If they didn't tell us she was dead, what else are they hiding?) Discovery could be a real burden on the estate, not to mention holding up probate.
If the plaintif was out to make an example, and strike fear into would-be "pirates", any legal excuse to burden the defense, even if the case had no merit, could be used to show that they play "hardball" with "zero tolerance" for "pirates" and those that "do not cooperate". The idea is not necessarily to go to trial, but to get the defense to cry "Uncle!" and settle. Remember, settlement for the plaintif in a case without merit is as much of a victory as one at trial, if not more so.
I'd think that a call for summary dismissal on the part of the defense would be far easier if they could show no grounds for the plaintif's burdensome discovery phase. I suppose one could try to play hardball with the **AA on principle, but they're bigger and meaner than most. Would it not be better to play the part of cooperative, innocent victim to earn the sympathy of the judge? Espescially if it was not burdensome to do so?
Remember, the plaintif wants a settlement, and the defense wants the suit dropped or dismissed (preferably with prejudice). Anything the defense can do to improve their odds strikes me as a good strategy.
You could've hired me.
Actually, you do.
Civil suits against deceased persons can easily be refiled against their estates, and if the suit is sucessfull, there is now a claim against the estate. Guess what, you just inherited a loss against your inheritance (though it can't exceed it).
Further more, while the executor does not inherit the suit, they have a fiducary duty to the estate to handle it when the estate is served. This can be a real problem because if the executor does not handle it "properly" (i.e. gives up and settles without a fight), the beneficaries can have a good case for suing the executor. It can turn into a real "damned if you do, damned if you don't" kind of problem for the executor: spend too much of the estates assets in defense and get sued. Spend too little, and lose the case, and get sued. Furthermore the will may limit the executor's freedoms in responding (though this can be a blessing for the executor as they can't be held liable for performance of duty if they are restrained from performing said duty).
It should have been obvious when mentioning defendents that I was referring to all present (deceased) and possible future defendents (the estate) in this case.
The bottom line is that judges do not like to see their courts clogged with frivolous cases because some now-present defendent blew off a plaintif. Due process is slow, and while necessary to protect everyone's rights, takes up the court's time (well the time of court clerks until a case comes to trial). Most reasonable people try to stave off likely problems they see on the horizon. I can not see the court looking disfavourably at a defendent that took steps to try to avert a trial for a case without merit.
You could've hired me.
There *is* a legal transgression that is taking place daily and it is impacting the industry in an enormous way. The courts have sided almost exclusively with the consumer (thankfully we haven't started to lose that many civil rights yet), and the RIAA has only one course of action left open to it: lawsuits.
Look EMI sent my ISP a nastygram that resulted in my losing internet service for a week. I work from home so this was a real hardship. I had never heard of the bands listed, the IP address listed wasn't even being used at the time, and I've never downloaded a song at home*. Music just doesn't matter much to me.
*I downloaded a public domain performance of a public domain song from Napster when they first started at work just to show my boss how cool the technology was.
Now lets look at losses: about $1000 for me, about $300 in customer acquisition costs for the ISP I dumped for not informing me of the letter they got before cutting off service. For EMI, $1. They obviously just did some brain dead port scan and hired someone not capable of cut and paste to write the nastygram.
This is a case that never went past the nasty-gram stage, just immagine the legal transgressions they are committing on the scale of our economy... I will gladly join a class action against them when it comes. They are impacting the nation in an enormous way. There is only one course of action left open to freedom loving Americans: lawsuits.
As I understand it though, the RIAA has constructed a "repent" clause in to all of their suits which gives you a get-out-of-jail free card in return for a signed promise of non-recidivism.
The innocent are the most impacted by this type of "repent" clause, it reminds me of our broken criminal "justice" system. Punish the innocent, pardon the guilty. It's just not right.
When my Mother died, the Social Security Administration told me to return her last benefit check. So, in the month you die, you get no benefits from Social Security. Let's say you die on the 25th of the month, and have spent the check for that month. Your estate will have to cough up the check and return it.