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How the RIAA has Dodged RICO Charges
Gerardo writes "Wondering why the RIAA hasn't been hit with racketeering charges over its shady legal fight against file-sharing? Ars Technica looks at why the RIAA has been able to dodge RICO charges. '"Right off the bat there are some problems with the predicate claims for RICO," explained IP attorney Rich Vazquez. "You have to have a pattern of racketeering activity: either criminal acts where there is a one-year jail penalty, or mail or wire fraud." Any RICO action brought against the RIAA would have to focus on the wire fraud component, likely accusing the record labels of poking around someone's PC without permission.' That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy."
... a prosecutor about the possibility of a RICO charge and not a defense attorney?
It really came down to the fact that I have not murdered anyone. Yet.
Greasing the right palms will let you break the law and get away with it, too.
Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
malicious civil prosecution and filing spurious, meritless, lawsuits need to become crimes with a 366 day maximum jail sentence
FGD 135
Asking about RICO is a red herring; ask instead about anti-trust - you know, price fixing, market collusion.
"As God is my witness, I thought turkeys could fly." A. Carlson
This is legalized crime.
09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C1 bottles of beer on the wall. Take one down, pass it round... Oh, umm...
We can get memos and emails to leak out of redmond, D.C., Apple etc. but not the offices of the RIAA or their associated law partner's offices?
It would only take one memo or email showing that they knew a defendant was not guilty or that they have no real proof or that they know they are fishing for information in court to seriously harm their cause.
I think (and IANAL) that if this could be shown once, it would be proper to ask for all communications between the RIAA and their lawyers regarding any particular case in discovery. That should pretty much shut down their tactics.
Can someone tell me why this doesn't happen?
Support NYCountryLawyer RIAA vs People
This argument presupposes that you actually had Kazaa installed and actually traded the files.
If some idiot^H^H^H^H^Hexpert from the RIAA gets my current IP address as the ID of someone who has shared music (I've never personally neither shared nor downloaded music
We have yet to see any good evidence that the stuff the RIAA uses to launch these suits even remotely passes muster for the legal requirements. Their experts keep saying it does, but a screen shot of data gathered through dubious measures isn't to be trusted. I'll mock up a screenshot showing anything you like if you give me an hour or so.
I mean, what if the RIAA starts pre-texting to get information about my account once they figure out that I don't have any open ports on my machine and there is no evidence I've ever done anything? Their assertion that an IP address is legally tied to an individual is a completely weak argument. Next they'll claim my firewall is an attempt to prevent them from breaking into my computers to collect the evidence they believe should be there.
I think there's a lot of evidence to support the fact that they're doing some pretty shady things. I mean, how many times have we heard about people who don't even own computers being sued? The RIAA just quietly drops the suit and moves on, hoping nobody will say anything.
Cheers
Lost at C:>. Found at C.
That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy I was say it's a great deal easier if you widen your scope to include hardware. Thousands, if not millions, of PC users use Residential Gateways, which specifically state "increased security, yada yada yada" on the box. So although the SOFTWARE may be configured to be open (such as LimeWire), the user could easily argue that the HARDWARE provided the expectation. With NAT and obfuscated IP addresses it's a technicially sufficient explanation.
Why are we still talking about Kazaa in 2007? As far as I know that network has been dead for years.
RICO was always going to be a stretch. The RIAA was, and still is behaving reprehensibly. The lawyers wanted some way to prove they were acting illegally, so they has a stab at the RICO laws. But these aren't designed to stop an entrenched cartel from suing its customers using inappropriate laws. They're disigned to combat actual organised crime. We're talking gangsters and organised fraud operations.
The only way to stop the RIAA is for someone to fight them on their terms, and win on the basis that the laws they're suing under don't apply to P2P filesharing. Given the possible costs - expensive even if the defendant wins - this is unlikely to happen.
How to dodge RICO charges: 101
1) Bribe officials.
2) ???
3) Profit
... I think (and IANAL) that if this could be shown once, it would be proper to ask for all communications between the RIAA and their lawyers regarding any particular case in discovery. That should pretty much shut down their tactics. Can someone tell me why this doesn't happen? IAANAL: It's called the attorney client privilege. We rarely think about it except as an inconvenience, but it really does help our legal system remain fair and efficient (not that our system is either, but it could be worse).On the other hand, if you could find a memo between the RIAA and it's constituency or within one of the organizations, it should be fair game...
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
The point of RICO is to deal with organizations made of disposable criminals. If you're trying to fight organized crime with ordinary laws, you run into the problem that gangsters can refill their ranks faster than you can investigate the individual people and convict them for their crimes, and most of the ones you can pin particular crimes on where doing it for higher-ups who don't commit any crimes directly and are sufficient nebulous in their control that it's hard to convict them.
Now, if RIAA employees were being regularly convicted of fraud or extortion for their work activities, but the RIAA was claiming that they didn't officially support this campaign, then RICO would make sense. But, in fact, any crimes being committed are being committed by the RIAA as a whole or its member organizations, so the obvious thing is just to charge them with their particular crimes.
It has always seemed to me that demanding money from someone, and threatening to financially ruin them if they don't comply, is nothing more than extortion. Does the RIAA's activities amount to extortion, and does extortion carry a jail sentence?
Counterpoint: Security is not privacy.
The road to tyranny has always been paved with claims of necessity.
"Enacted in 1970, RICO allows for additional jail time in the case of criminal prosecutions--and heavier civil penalties for lawsuits--if the person or entities involved are found to be part of an ongoing criminal enterprise."
I would call the baseless allegations about copyright infringement exactly that. Extortion at the LEAST.
Since copyright infringement is a CIVIL matter, the RIAA has used criminal laws to reach it's ends. SLAPPING
people who can ill afford a defense. They ARE a criminal racket, and as such, need to go away.
It's both, collusion to fix prices and on going payola scandals, as in, since the 50s at least, and they will_not_ stop, and they do have convictions there, so it is a RICO case. Where's the choice on the radio that stopping payola allegedly was going to fix? It's the same top 40 since I've been a kid and the radio was all AM. NOTHING has changed there. With the big group, why aren't there any noticeable pricing differences? Cost of copies is negligible,so there's only one answer, most likely collusion.
There's plenty to go get a RICO case going, just no one in government gives a crap about consumers, we are living in the corporate crooks rule the world phase of government. Look at sony rootkit, imagine if it had been YOU did that? You'd be in jail now, plus a fine that would hurt. Sony and their tame rootkit company? Small fine that didn't hurt, a week or so of sorta negative press that meant about nothing in the grand consumer area, no jail time for anyone for mass "hacking", and back to business, and their next suckers pay the fine.
I don't download, I *boycott* and have been doing so for many years now. Any band that signs with an RIAA affiliated label, screw 'em, I don't even want to listen to their crap, nothing I haven't already accumulated years ago, and is most likely now on an obsolete format. Just say no to giving the MAFIAA labels or studios one penny. There are plenty of other things to do for amusement and entertainment, and certainly better places to spend your money.
RICO was always going to be a stretch. The RIAA was, and still is behaving reprehensibly. The lawyers wanted some way to prove they were acting illegally, so they has a stab at the RICO laws. But these aren't designed to stop an entrenched cartel from suing its customers using inappropriate laws. They're disigned to combat actual organised crime. We're talking gangsters and organised fraud operations.
Except RICO has become a way to dog pile on a defendant to get them to plea bargain by threatening much higher penalities if they are found guilty. It gives them a bigger hammer to use.
As one lawyer friend put it - You want to learn about right and wrong - seek religion. You want to learn about winning and losing - go to court.
I'm a consultant - I convert gibberish into cash-flow.
In the same way the RIAA mislabels other aspects of their legal actions (e.g. calling P2P filesharing Online Media Distribution Systems), calling this a "settlement" agency is absolute New-Speak.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Sending so many incorrect infringement letters could constitute the mail fraud component.
If you throw away the kleenex after the act, it`s difficult to prove there was a genocide.
That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy.
Doesn't matter how much of a reasonable expectation of privacy the user has. Recording a conversation over a wire is wiretapping. Which is what the RIAA is doing. "User X and address aaa.bbb.ccc.ddd downloaded these packets." IANAL, but I believe it is illegal without a court order.
From the link:
Sec. 2511. Interception and disclosure of wire, oral, or electronic communications prohibited
(1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
Only way it's allowed is if the courts say you can, or you own the cable.
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with - (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,
I don't believe the RIAA has a letter from the Attorney General, so that seems like that covers it.
Weaselmancer
rediculous.
first of all, if you are a part to the 'conversation' it's not wiretapping.
i.e. if you call me, and I live in a one party state, I can record the call, and that's not wiretapping.
second, it's not "address aaa.bbb.ccc.ddd downloaded these packets"
but rather, uploaded.. (an important point, complete leechers have not violated the law)
every day http://en.wikipedia.org/wiki/Special:Random
first of all, if you are a part to the 'conversation' it's not wiretapping.
IIRC, didn't Nixon get in some hot water recording conversations where he was in the conversation? Still illegal, I believe. IANAL though.
second, it's not "address aaa.bbb.ccc.ddd downloaded these packets" but rather, uploaded.
True. I wonder if someone has tried to work this into a defense? If the RIAA is part of the conversation, then it must be taking place with their consent. If they're not part of the conversation, then they're wiretapping. They couldn't argue that they are both, I'd imagine.
Weaselmancer
rediculous.
...At the end of the day, the RIAA may be a lot of things, but a criminal enterprise engaged in racketeering is not one of them.
They draw that statement essentially as a result of the facts that; (A) a large mass of people who have been individually charged haven't coordinated their efforts and (B) their hasn't been an RIAA whistleblower. I would hardly consider that proof of innocence...
Free of offensive and ignorant devices such as begging the question, catch-22s, etc.
Oh and the verify-word to post is 'compete', just hearing it over and over from the open source crowd makes me think open source isn't full of hypocritical crybabies that engage in product dumping.
I'd venture to suggest that most of us /. nerds come under the IANAL category and some of us are even foreign!
With that in mind, is it really too much to ask that submitters and editors (ha!) edit and insert full length descriptions of acronyms when they are first presented in a story?
e.g. RICO, Racketeer Influenced and Corrupt Organizations Act.
Thanks for your time; this has been a public service whine.
Is that with all the thousands of pending lawsuits, not one defendant has snapped and gone on a shooting spree. When you SLAPP to many times eventually someone hits back. -- "The RIAA disrespects Allah" ---
Indisrimate extortion of money from dead people, grandmothers and children who don't own PCs aren't predicate acts. Aren't a pattern of criminal activity?
It *is* possible to buy a get (and stay) out of jail card in the US. You just have to be a member of the right economic class and blow the right politicians. Do the top dogs in the RIAA personally blow the politicians or are the legal whores their proxies for that, too?
Predicate Act == blowing Bush's buddies?
So basically the reason prosecuters cant bust them with RICO is *gasp* RICO requires that the organization being indicted has broken a law multiple times? This seems like the biggest nonstory ever, they havent broken any laws so they arent going to be prosecuted. Am I just missing something here?
I dont like my neighbor much, maybe I can get him indicted on conspiracy to commit a crime! I just have to figure out how to work around the technicality that he hasnt committed any crimes....
"Wondering why the RIAA hasn't been hit with racketeering charges over its shady legal fight against file-sharing?"
Nope, I'm not wondering at all. But then, I understand the law and don't hurl charges (that I don't understand) against organizations protecting their rights. Heck, unlike most here on Slashdot I appluad organizations trying to uphold the law - even when I don't agree with the law.
So is Ars Technica trying to get RICO-suave?
[ducking]
IANAL!
If there must be explicit causation to bring racketeering charges against the RIAA that revolve around mail fraud, wire fraud, or a set of crimes that net over 1 year in jail, the obvious choice to me is mail fraud.
They have consistently misrepresented the facts they have in hand about any actual person in their "Settlement Offer" letters. These attempt to defraud consumers by making false claims about the evidence they have in hand regarding a particular person's innocence or guilt. These false claims are done for the purpose of self-enrichment.
If I file suit in federal court alleging I think that FamousPersonA is a wife-beater and then send a letter to FamousPersonA saying, "Settle with me and I'll drop the suit", I believe this is a form of blackmail. If I know that I have a larger legal team than they do and can outlast them at trial or in any countersuit, then I have unlimited means to extort money from FamousPersonA. Or, anyone else.
The claims are False because the RIAA purports to have proof of guilt. These are overly confident, overstated positions. They constitute a fraudulent mail scheme. They are individually punishible and form a pattern of intimidation and attempted blackmail.
Unitarian Church: Freethinkers Congregate!
Kinda like running an defaulted Wifi AP gives users no reasonable expectation of privacy?
Yet people get busted for "stealing wifi".
Chas - The one, the only.
THANK GOD!!!
I would like to see Steve Ballmer's Ubuntu 7.04 GNOME desktop. He is using Evolution to compose a message to billg, suggesting they drop this whole silly Vista business and rebuild Windows on a stable Unix base. His signature uses ASCII art of a fluffy kitten holding his business card.
An Open Office document is also visible, explaining in Ballmer's own words that it's ok Linux is built on "Interlectural Propperty" stolen from Microsoft, because Linux had it first.
Amarok is visible, playing the sort of song we can imagine Mr Ballmer humming along to.
You are free to add other touches.
You have forty-five minutes.
Then that would mean the original statement has no point, since I'm responding to the claim that a open security model implies no privacy. I would never say they're mutually inclusive, but the author's statement seems to directly correlate the two. If you go into the bathroom and leave the door unlocked, you're entitled to expecting privacy. The author implies that because I went into a room (not bathroom) with the door unlocked, I expect no privacy because the door isn't locked. I was merely stating the door is indeed secure because of the Rottweiler he parked right in front of it with the command, "Sick Balls". 8-D
I'm not sure I understand a "reasonable expectation of privacy" within this context. I mean, if I leave my garage unlocked so my neighbor can borrow my mower, I expect that if either a thief OR a police officer used the occasion to open the door and poke around inside, that both would be trespassing?
Let's say I've posted a nice large sign stating such, "Private Garage. Keep Out! All Violaters Are Trespassing And Will Be Prosecuted!". Would I then have legal recourse?
So what's difference with my computer? Can a company really present a case that essentially says, "We know Party A is guilty because we broke into their home and stole evidence that implicates them in stealing from us". Isn't the company implicating themselves criminally when they introduce this evidence?
That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy.
Not everyone uses Kazaa, though. I'm sure there's plenty of geeks out there who use torrents, unpopular p2p clients, etc., who possibly encrypt their harddrives, protect them with passwords, etc.
While the majority of people sued by the RIAA may not adequately protect their material, all we would need would be a few incidences of the RIAA snooping on protected computers to bring RICO against them (IANAL).
The likely problem is that the RIAA just preys on easy targets; their whole objective is to successfully sue a number of people to scare the rest of the populace into compliance. They couldn't possibly litigate against everyone; it would be too expensive.
What we need to do, is set up some computers that are technically "protected," but are accessible through some well-known vulnerability/exploit used to bypass the user's password, and fill them to the brim with pirate data. Then with any luck the RIAA will slip and sue the holders of said computers, who should in turn contact the ACLU.
I read in another /. post somewhere that you only need two incidences of the crime in question to bring RICO charges against the corporation.
Again, no. "Expectation of privacy" is a legal term (which is generally used for determining legality of government searches) and this is the sense of the word that is used here.
Kazaa has no reasonable expectation of privacy not because it's traffic is unsecured between endpoints but because it takes no steps to obfuscate the end user. The IP addresses and all content shared are broadcast to the network, and that personally identifiable information is readily available to any user on the whole network.
It's like sending email encrypted vs not encrypted. This in no way implies that SMTP traffic is secure (headers remain visible, packets are world-readable), but it does provide privacy for the end users for message content. Privacy is often a prerequisite for computer security because controlling digital information is how you secure it, but the two concepts are really not related.
Strictly speaking, a door need not be locked to provide privacy. You could, for example, put a transparent door with a deadbolt on a bathroom. Security but no privacy. Or, you could use a curtain or turn the lights out. Privacy but no security. Consider also: a man in a jail cell is very secure, but has no expectation of privacy at all. On the other hand, a man in his own home with curtains closed and doors closed has privacy, but he need not lock his doors to ensure that. He could be having a wild party or surfing SlashDot, and you have no way of knowing without violating the mechanisms of his privacy.
The road to tyranny has always been paved with claims of necessity.
Why not claim fraud alleging that claims of, e.g., $750 per song are in bad faith?
It sure would be a shame for something to happen to it.
OK, to counter the counter point... The last couple paragraphs just re-state what I've summed up, which was, they are not mutually inclusive. You can have each by themselves and each independantly (privacy and security).
I would submit that the RIAA is finding it's NOT that simple as to assume the public IP address is there for all to see and easily identifiable. Otherwise, they'd never be wrong. I'm willing to concede that I wasn't using the legal definition of privacy, but the practical. However, I could argue you've made the same leap with the 2nd paragraph by stating,
no reasonable expectation of privacy not because it's traffic is unsecured between endpoints but because it takes no steps to obfuscate the end userwhich implies that I WOULD expect privacy if it's obfustcated, which back to what I think is your most valid point, would STILL not give a reasonable expectation of privacy.
It's all great fodder for debate. I could argue this point either way (file sharing by its very nature removes reasonable expectation of privacy VS secure, NAT'd and shared networks imply anonominity, and hence, privacy).
IANAL, but it seems to me that it might be easier to pursue racketeering charges. Threats of prosecution used to discourage the use of alternative distribution channels. Payment of protection money in the form of royalties regardless of whether the artist has an agreement for such payment in place with the RIAA.
(See story.)
Have gnu, will travel.
Anyone remember when all of the (poor, poor) doctors were crying about frivolous lawsuits, and pushing for litigation to reduce them? What happened there? It seems to me that (IANAL and TINLA etc etc) that the RIAA lawyers blatantly display a lack of due diligence when suing people without computers, etc, so wouldn't this be covered by what little (vague) anti-frivolous-lawsuit laws we do have in place? Interesting that the right-wing is all up-in-arms when their own (read: rich doctors) are the victims of frivolous lawsuits, and yet a glaring example of frivolity such as RIAA "shotgun litigation" happens, and they're strangely silent on the issue, and would go so far as to pass the DMCA, almost in blind support of said litigation.
--"insert clever quote here"
Suing someone without a case is extortion in all but name. Infact it's worse than extortion. If you try to extort me by coming around with a baseball bat, I'd be allowed to take your head off with a big sword, if you did it with a court I have to roll over and take it, or end up in jail/dead.
What do you think about the judge who's suing a dry cleaners for $65million over a lost pair of trousers? if he wins outright they'll be ruined. If he wins 1% of what he's suing for they'll be ruined. Even if he doesn't win, the hidden costs that they've incurred (maybe the stress has caused them to make mistakes and damage other people's trousers) will be close to ruinous (assuming, then, that they get their costs back, which given that they did misplace his trousers, isn't guaranteed). How does that NOT fit the common definition of 'extortion', just because his enforcers have badges and are lead by a man in a wig and a toy hammer?
Trial by press is a big thing in the US. Many cases like the lost pants could have been lost behind closed doors or if the amount much smaller pretty much ignored.
However when a judge of all people sworn to uphold justice does something this outragious, the trial by the press is vicious. The judge is exposed as being unfit as it is clear he has no sense of justice at all. This is a case to watch. Expect the judge to be fully discredited first by press, then by partners and the bar.
The partners and bar will have to move or be discredited themselves for permitting the fool to remain on the bench.
The truth shall set you free!
Apart from the wire fraud (false takedown notices, court orders to ISPs based on flawed evidence), I'd like to see an extortion charge (pay us or we'll sue you when the basis for their claim is too weak to sustain the claim), although that is probably just wishful thinking. Are any of the other 30+ crimes potentially applicable, even at a stretch?
We are the 198 proof..
By looking solely at the data stored on my computer, how can anyone prove that my actions caused files to be downloaded? Forget about the grandkids downloading junk to grandma's computer; think virus. What if there were a i-hate-mafiaa virus which caused my computer to download/host songs/movies, and the virus operated long enough to get mafiAA's attention, self-deleted, and left the incriminating data on my hard drive? My computer would have the "evidence" of illegally downloaded data, and yet I did nothing to put it there. Given that virii, worms, and botnets are so prevalent, how does anyone truly know who put the data on the hard drive? If the mafiAA have many successful lawsuits, wouldn't it be profitable for them to code a virus such as I described?