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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."
According to Wiki ( http://en.wikipedia.org/wiki/Racketeer_Influenced_ and_Corrupt_Organizations_Act ), which, while we all know is as reliable as Miss Cleo makes for a nice copy/paste...
Under RICO, a person or group who commits any two of 35 crimes--27 federal crimes and 8 state crimes--within a 10-year period and, in the opinion of the United States Attorney bringing the case, has committed those crimes with similar purpose or results can be charged with racketeering.
The RIAA has yet to actually get hit with their OWN investigation, let alone multiple ones. Since the RIAA hasn't been brought up on charges yet, let alone be convicted, they can't meet those prereqs for RICO.
This still leaves the door open in the future (given the RIAA's current track record), but right now, all that can be done is to keep winning the frivolous suits they bring up against other people and not settling early.
RICO looks like a three strikes law, and the RIAA doesn't have one strike against them yet.
IAAL, and I think you would get a much more useful (ie accurate) answer from a prosecutor. His only client is the government. A defense lawyer you may only tell you what you want to hear, so that you will pay him. Besides, a prosecutor can talk to you about building a case and what goes into it, where as a defense attorney normally only see a case after it has been developed, and then has to poke holes it it from there.
... 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.
"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.
In particular, I recommend you download music released under a Creative Commons license. For instance, check out: http://www.jamendo.com/en/
Just because you don't want to infringe current copyright law (good for you!) doesn't mean you have to ignore the wonderful world of downloadable music!
Why are we still talking about Kazaa in 2007?
No answer for this has been showed for me yet, so I will attempt to answer.
From what I understand of these cases is that most of the lawsuits are being filed using information collected years ago, when Kazaa was widely used.
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?
Nixon didn't get into trouble for recording conversations that he was a part of - he got into trouble because those recordings revealed that he was aware of illegal activities being performed on his behalf, or on his orders.
IIRC, Nixon got caught wrongdoing because he recorded everything and thought those recordings could not be subpoenaed:
He thought wrong.
"The issue of access to the tapes went all the way to the Supreme Court. On July 24, 1974, in United States v. Nixon, the Court (which did not include the recused Justice Rehnquist) ruled unanimously that claims of executive privilege over the tapes were void, and they further ordered him to surrender them to Jaworski. On July 30, 1974, he complied with the order and released the subpoenaed tapes."
"A defense lawyer you may only tell you what you want to hear, so that you will pay him."
Erm... No.
Your lawyer has an obligation to tell you the truth to his/her full knowledge no matter what you want to hear. Either that or he/she can face disbarment. This is the base of the client-attorney trust relationship.
Just imagine if the government or the other part could pay your lawyer to misinform you...
http://www.dieblinkenlights.com
Actually, the law may not have been designed for this, but some of the RIAA's tactics do fall under RICO. Just read the Attorney General's Guidlines on RICO and criminal/terrorist enterprises, and the RICO Act itself.
Here are a few sections of interest:
"Moreover, a group's activities and the statements of its members may properly be
considered in conjunction with each other. A combination of statements and activities may
justify a determination that the threshold standard for a terrorism enterprise investigationis
satisfied, even if the statements alone or the activities alone would not warrant such a
determination."
"(1) Threats or advocacy of violence or other covered criminal acts:
Statements are made in relation to or in furtherance of an enterprise's political or social
objectives that threaten or advocate the use of force or violence, or statements are made
in furtherance of an enterprise that otherwise threaten or advocate criminal conduct
within the scope of 18 U.S.C. 2331(1) or (5) or 2332b(g)(5)(B), which may concern such
matters as (e.g.):
(i) engaging in attacks involving or threatening massive loss of life or injury,
mass destruction, or endangerment of the national security;
(ii) killing or injuring federal personnel, destroying federal facilities, or defying
lawful federal authority;
(iii) killing, injuring or intimidating individuals because of their status as United
States nationals or persons, or because of their national origin, race,color,
religion, or sex; or
(iv) depriving individuals of any rights secured by the Constitution or laws of the
United States.
(2) Apparent ability or intent to carry out violence or other covered activities:
The enterprise manifests an apparent ability or intent to carry out violence or other
activities within the scope of 18 U.S.C. 2331(1) or (5) or 2332b(g)(5)(B), e.g.:
(i) by acquiring, or taking steps towards acquiring, biological agents or toxins,
toxic chemicals or their precursors, radiological or nuclear materials, explosives,
or other destructive or dangerous materials (or plans or formulas for such
materials), or weapons, under circumstances where, by reason of the quantity or
character of the items, the lawful purpose of the acquisition is not apparent;
(ii) by the creation, maintenance, or support of an armed paramilitary
organization;
(iii) by paramilitary training; or
(iv) by other conduct demonstrating an apparent ability or intent to injure or
intimidate individuals, or to interfere with the exercise of their constitutional or
statutory rights."
"II. GENERAL CRIMES INVESTIGATIONS
A.
DEFINITIONS
(1) "Exigent circumstances" are circumstances requiring action before
authorization otherwise necessary under these guidelines can reasonably be obtained, in
order to protect life or substantial property interests; to apprehend or identify a fleeing
offender; to prevent the hiding, destructionor alteration of evidence; or to avoid other
serious impairment or hindrance of an investigation.
(2) "Sensitive criminal matter" is any alleged criminal conduct involving corrupt
action by a public official or political candidate, the activities of a foreign government,
the activities of a religious organization or a primarily political organization or the related
activities of any individual prominent in such an organization, or the activities of the
news media; and any other matter which in the judgment of a Special Agent in Charge
(SAC) should be brought to the attention of the United States Attorney or other
appropriate official in the Department of Justice, as well as FBI Headquarters (FBIHQ)."
Now, here are some excerpts from the RICO ACT itself that the RIAA might just so happen to fall under:
Title 18, 1961 (RICO)
1) "racketeering activity" means (A) any act or threat involving murder, kidnapping, gamb
@Mindless Drivel: 100% of Twitter posts ever Tweeted.
Sounds like a good idea. There's no way a person could have done $750 worth of damage by downloading a song licensed over iTunes for 99 cents.
IAAL and you would make a very good one as well. This is exactly the point I thought of when I read the article. In fact, mail fraud is undoubtedly the most often used predicate criminal act for civil RICO, and with good reason. It's almost impossible to conduct any business without using the mail in some way. If you allege that some enterprise is engaged in some type of ongoing fraudulent activity and they used the US mail on two or more occasions if furtherance of that fraudulent scheme, you are well on your way to satisfying the pleading requirements for civil RICO.