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."

Comments

Shouldn't they be asking ...

[WrongSizeGlass]

... a prosecutor about the possibility of a RICO charge and not a defense attorney?

Re:Shouldn't they be asking ...

[2names]

I would much prefer getting my advice as to whether I have a case from the person who spends their time finding ways to get cases thrown out of court than from a prosecutor.

Re:Shouldn't they be asking ...

[Nukenbar]

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.

Re:Shouldn't they be asking ...

[PopeRatzo]

You two have really beaten the hell out of that poor shipbuilding/shipsinking metaphor. Will you please leave it alone now? Enough, already.

A RICO case really doesn't have that much to do with boat construction, capisce? It's about ongoing criminal enterprises. In my mind, the RIAA is exactly that, an ongoing criminal enterprise.

When I heard about the way SoundExchange was collecting money for musicians without their permission or knowledge, and then keeping the money unless those artists contacted them to collect, it was the final straw in a very big bale of crooked hay.

I've dogded, like, 10000 murder charges

[Anonymous Coward]

It really came down to the fact that I have not murdered anyone. Yet.

Re:I've dogded, like, 10000 murder charges

[thejynxed]

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

Simple

[Digital Vomit]

Greasing the right palms will let you break the law and get away with it, too.

Re:Simple

[Volante3192]

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.

so the needed reform is identified

[Anonymous Cowpat]

malicious civil prosecution and filing spurious, meritless, lawsuits need to become crimes with a 366 day maximum jail sentence

Asking the wrong question.

[R2.0]

Asking about RICO is a red herring; ask instead about anti-trust - you know, price fixing, market collusion.

Re:Asking the wrong question.

[Kelz]

And trying to take down a conglomorate of lawyers with reps and senators in their pockets with law is like trying to cut down a tree with that herring.

Why is it that...

[zappepcs]

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?

Re:Why is it that...

[JoelMartinez]

Maybe that just means that any documents like that don't actually exist, and that the RIAA isn't actually a corrupt organization. How's that ;-)

Presumed guilt?

[gstoddart]

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."

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 .. ever) if the RIAA spends time trying to break into my computer to prove that I did something I've never actually done ... that sure as hell sounds like they'd be poking about my PC without permission.

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

Expand your thinking of "expectation of privacy"

[JohnnyComeLately]

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.

Ah! The old "Not guilty of the crime" argument

[91degrees]

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.

Attorney Client Privilege

[gd2shoe]

... 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...

RICO is a bit inappropriate here

[iabervon]

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.

Re:Ah! The old "Not guilty of the crime" argument

[Registered Coward v2]

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.

RIAA Countersuits: Mail Fraud

[justanyone]

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.

Re:RIAA Countersuits: Mail Fraud

[kilgortrout]

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.

Re:What about extortion?

[Anonymous Cowpat]

and if the defendant has, say, had to sell their house to cover their legal expenses in the mean time. Will they get the associated costs of moving out of their house and storing their property paid? And if their kids have had to do without, say, new clothes and had to suffer bullying because they've been wearing hand-me-downs, will they be compensated? What about the months of sleepless nights, family breakdown, complete loss of life outside of work/courtroom?
My cousin is a lawyer (in Britain, when the winner normally gets their costs from the other side) and he was explaining to me when I challenged him about contract law and 'valueless considerations' (such as promising not to sue for something that they wouldn't be able to successfully sue you for anyway) that even if the other side has no case you won't get all the costs incurred in defence back.
And here's another example, http://www.taubmansucks.com/, this guy was sued over a trademark issue by someone who had no case. A year later he finally won, and got the costs of engaging a lawyer back. Unfortunately, he couldn't afford to engage a lawyer at the start so had to defend himself. He's a consultant. When he was buried in legal documents, he couldn't work. (from act115) "I probably lost tens of thousands of dollars in potential billings;" - did he see any of that? nope. Work you do to defend yourself is free - if you want to be paid, be a lawyer.

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?

Re:both

[Macadamizer]

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.

Just because everyone charges the same price for a CD does not mean there is collusion. The problem is, CD's are not fungible -- you can only get a U2 CD (legally) from one source, the record label that works with U2.

If you could get U2 CD's (legally) from multiple sources that were in competition with each other, and they still all charged the same price, then THAT might be evidence of collusion.

If people didn't care about which CD they were buying, and only want any old CD, and all CD's were still the same price, that might be evidence of price-fixing as well.

But neither of these are reality -- the fact that a U2 CD and an Usher CD cost about the same amount of money simply means that the record companies can sell a lot of CD's at the current price, and that's what they are priced at. Actually, you can probably get an ABBA CD a lot cheaper than the U2 CD, because the market sets the price, and it's hard to sell an ABBA CD for the price of a new U2 CD. But the fact that the Usher CD and the U2 CD are the same price is not evidence of price-fixing -- if the label selling U2 CD's dropped their price by $2 a CD, you wouldn't expect all of the Usher fans will become U2 fans. Musical taste doesn't usually work that way. Simply put, there isn't a competitive market for CD's like there are for many consumer goods -- each CD is represented (usually) by only a single record label, so there is a single source for the CD, so there CAN'T be collusion on price, at least not for any particular CD.