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)."

Comments

Re:thinkofthechildren

[cpt kangarooski]

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.

Re:Why?

[multisync]

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 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:Legal or Illegal?

[drinkypoo]

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?

Re:Why?

[NewYorkCountryLawyer]

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.

Re:That's not what it says.

[Jaywalk]

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.