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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?
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
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?
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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.
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?
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!
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.
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"