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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)."
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!
It will be interesting to see how much of its leg must be knawed off.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
With all due respect to NYCL, why is this front-page news? Do we really need to hear about every stupid law-and-motion issue that arises in one of these cases? Significant judgments, OK. Landmark rulings, fine. But a fucking motion? Last week I swear there was a "story" about a routine DISCOVERY order. . .
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.
Got Trader Joe's? friendwich.com RSS feeds work now!
The "Tort of Outrage" would be a great name for a band.
I am not a crackpot.
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?
The dangers of knowledge trigger emotional distress in human beings.
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.
The simple truth is that interstellar distances will not fit into the human imagination
- Douglas Adams
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 come, the result of the counterclaim case. That will be newsworthy either way.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
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?
If not, and Ms. Andersen had reached a settlement, wouldn't it have been in bad faith, since the Settlement Support Center knowingly lied to her?
I guess my real question is: how much of the quoted material is lawerly hyperbole and how much is based on actual facts.
[Fuck Beta]
o0t!
And lazy.
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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.
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.
How is her condition relevant to the case?
It's not meant to "Troll" or "Flamebait". It's just that, I'm emotionally, socially, and mentally disabled, taking work whenever and wherever I can, addicted to the Internet, just a really sad sack, so please, take that into consideration and have pity on me and mod me up to plus 5 "Insightful".
If not, just imagine that I had an even sadder story and consider that I'm too disabled to register.
Jesus Christ! Everybody thinks they're a member of some downtrodden group that needs (demands) special treatment.
My poor daughter tells me many times folks come in to her restaurant during the Lunch Rush, and when they're not served when they think they should be served, the response from some folks is "It's because I'm Black!"
Yeah right, the Mexican and Black cooks in the back can see the race of the customers. Oh, and it's NEVER noticed that the White customers have been waiting just as long, if not longer, than they were.
It's not just black folks: it's this entire society.
I once read a story of how some dyslexics were demanding more time in Law School to take exams. But if I were ask for a(n) (hourly) discount form these dyslexic attorneys, I'm sure I'd be labeled as "insensitive" or "anti-disabled". So, I guess I have to take my chances that my attorney isn't dyslexic and pay twice as much for their services.
Oh, nevermind.....
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.
University owned computers, IIRC, tend to be "federal interest computers" under the Computer Fraud & Abuse Act. In other words, had they hacked one of those, you just might be able to send the FBI after them and get them charged with a felony.
:/
Man, I'd love to see that, RIAA thugs going to prison for their nasty shakedown tactics, but I'm probably dreaming
This is Slashdot and it's about the RIAA! Duh!
Barratry is a criminal offense in California.
From the California Penal Code:
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.
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 bunch of misguided nutcases"?
Of course they're going to challenge the counterclaim - and they'll challenge it with everything they can think of because if they lose, suddenly there will be substantially more lawyers prepared to take on defense cases at a very good price (plus a percentage of any winnings in a counterclaim) in their next round of suing people.
The judicial system is a complete scam. The judges go out of their way to protect both lawyers and other judges. A true case of the fox guarding the chicken coop. Total corruption, IMO.
While Barratry might be on the books as a crime, in practice it is almost never pursued. The only exception might possibly be if you've annoyed enough Judges to warrant exceptional attention to yourself. And even then it's an uphill battle.
If you don't believe me, show me how many lawyers ever get prosecuted for Barratry over the past few years. It's very few, if any. And that's not due to high standards in the legal profession.
What's needed is an independant review committee made up of non-lawyer citizens to review the actions of both Judges and Lawyers. Until then, you'll have the same corruption taking place.
"Should she not be prosecuted at all because, after all, she's only 7?"
Well, yeah. It's a pretty fundamental part of western law that a 7 year old really can't be responsible for anything.
Did you just get here off the boat or something? You seem completely obvious to the way the world works.
Excellent idea! Throw the entire Association in the county jail!
Astounding!
Would you kindly mod me +1 insightful?
are greatly exaggerated.
I seem to remember there being some rules that basically prohibited spouses from being required to testify against one another (although they could so voluntarily). That might be a local one (Canadian) though, but I though the US had something similar.
If such rules exist, then I would imagine that a similar protection might exist for young children in that the should not be compelled to bear witness against their parents/guardians. This would be especially important and it would be rather emotionally traumatizing for a child, and as it stands lawyers are good enough at manipulating words to dance legal circles around confused adult witnesses, let along children.
Copyright is acceptable- going after people through the net is not. Users have an expectation of privacy (most users think they are anonymous, and are/can be for the most part) and the law should recognize the complexity of the internet and networks because they are going on a wild goose chase anytime they go after somebody based on an IP address.
The US government even had credit card records in the largest criminal case against child porn users in the US and were unable to identify users. Of the 35,000 people who were attacked many committed suicide and a mere 100 were prosecuted. Clearly the internet does not provide enough to justify probable cause let alone evidence of a crime.
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.
===== Murphy's Law is recursive. =====
RIAA and MPAA are the teeth of the members. Why let them hide behind these fronts? It appears the major labels supporting RIAA are EMI, Sony BMG, Universal, and Warner. They understand money, and being deprived of it.
The chance of the RIAA being tried for anything (let alone in barratry) in California is about zero.
They own (through their membership) most of LA and a good chunk of southern California.
They own (through their membership) most of LA and a good chunk of southern California.
The movie industry is big, but the music industry isn't. Total US music industry sales are around $10 billion a year, and dropping, or so says the RIAA. Google, Microsoft, Apple, HP, and IBM each generate more revenue, and far more profits, than the entire music industry. The music industry doesn't employ many people, unlike the movie industry, so the employee votes aren't there.
Dear Mr. President. There are too many states nowadays. Please eliminate three.
I am not a crackpot.
I was lumping the RIAA together with the entertainment industry. They would stand up for one another in any court case.
My point is the very small likelihood of prosecuting a portion of the entertainment industry in a Californian court.
The case of Randal Schwartz is directly applicable to this case:
http://www.lightlink.com/spacenka/fors/
- in Oregon - Trespass of Chattels was directly considered.
The MPAA discussion of the first counterclaim, "Electronic Trespass", refers to such Trespass.
True: Schwartz was prosecuted on criminal charges, while these are civil claims.
I cannot say anything about the correctness of the claim, but the applicability of "trespass" to the circumstances seems relevant. The MPAA makes some of the same claims that Schwartz did. They were shot down for him, though.
"We have been watching you for some time, Ms. Anderson"
I would also say, if you wish to buy a RIAA-released album, buy it second hand from ebay or any number of S/H stores. It does depend upon someone buying the album new, of course, but it'll always happen. Second hand CDs are cheaper, the RIAA gets exactly $0 and S/H stores also tend to have stuff that stores selling new CDs don't.
Between the falling angel and the rising ape
"My understanding is that the RIAA simply tracks IP addresses and then sues whoever was using the address at that time"
And of course there is no way to mimic/spoof an IP address? My problem is the RIAA does not appear to always perform what is called "due diligence" in the legal world before suing. I may be wrong, I have been before and will be again...but, it seems to me that there are way too many cases where they have made huge assumptions and sued people based on those assumptions. They may also be violating the law in pursuing their agenda, in some cases. There are clouds that obscure facts sometimes. I would never sue someone without evaporating those clouds and being 100% sure of my facts. They only do so, in my opinion, because they have lawyers on retainer and in their employ and can afford to sue everyone they wish. They don't appear to care if they happen to pull in some innocents along the way.
I reserve the right to think for myself. Others' opinions are optional. Puppy on lap = typos...not illiteracy.
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.
Also known as "giving the RIAA enough rope to hang themselves".
No wonder they want the counterclaim dismissed.
It appears to be the case that the RIAA dosn't want cases to actually go to court even when they are simply the plaintiff. Here they have effectivly ended up as the defendent in a case where a judge is quite likely to "throw the book at them".
My problem is the RIAA does not appear to always perform what is called "due diligence" in the legal world before suing. I may be wrong, I have been before and will be again...but, it seems to me that there are way too many cases where they have made huge assumptions and sued people based on those assumptions.
Effectivly what they are doing is using litigation or more likely the threat of litigation in order to extort money from people.
They may also be violating the law in pursuing their agenda, in some cases.
If they are actually suing people then in could be "Barratry". If they are just making threats to sue then they probably are just being annoying.
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