RIAA Defendant Cross-Sues Kazaa And AOL

NewYorkCountryLawyer writes "In what appears to be a first, RIAA defendant Michelle Santangelo, the 20-year old daughter of Patti Santangelo, has made a motion for leave to serve a third party complaint against Kazaa and AOL, as well as against someone who installed Kazaa software, in Elektra v. Santangelo II. Her proposed third-party complaint (pdf) alleges that any injuries plaintiffs might have sustained were the result of the third party defendants' "negligence and breaches... in the defective design of Sharman Network's program, "Kazaa" which was a dangerous instrumentality in its each and every use as it existed in 2002-2004; the trespassing and reckless installation by Matthew Seckler [the person who allegedly installed the software without authorization] of such program; the failure to warn by AOL and Sharman; the failure to block the downloading of such files by AOL; the improper blocking of alleged (RIAA) warning messages by AOL and Sharman; and, the secretive file sharing system of and by Kazaa.""

Comments

It wasn't me, it was the software

[QuantumG]

Take responsibility. Stand up and declare your rights.

Don't weasel out by blaming the other guy.

Re:It wasn't me, it was the software

[Anonymous Coward]

The one defendant was 10 years old at the time. Yeah, he knew what he was doing.

Re:It wasn't me, it was the software

[QuantumG]

This reminds me of people who leave their bong in the lounge room or other "communal area" in share accommodation. If the cops burst in they can't prove who was smoking the pot, so they can't arrest anyone, right?

Well, no. The cops just charge everyone with possession and when they try to pull that communal area crap in court they get laughed at by the judge.

Re:It wasn't me, it was the software

[QuantumG]

It varies from state to state. In most, though, you're looking at a fine, not jail time, and common areas are considered everyone's responsibility, not no-one's responsibility. Obviously if they find drugs in your roommate's room, not in yours, then you're clear.

Re:It wasn't me, it was the software

[sumdumass]

I had a long fight once where I was at a house visiting a friend, a knock came at the door and the guy came in to split some coke up that they bought together. Literally 3 minutes after he walked through the door, they were passing it back and forth looking at it and three knocks came to the door followed by it bursting open with about 6 officers running in telling everyone to get down. IF you weren't on th floor by the time they reached you, they put you on the floor and I don't mean helping you either.

In the commotion, the 8ball got tossed onto the floor and everyone got arrested for it. Including me and another friend I was riding with.

It took 10 months of fighting in court and almost 5 grand to get out of it. Evidently, the guy who came in, bought it from a undercover cop and they followed him home instead of busting him there because the two (who were splitting it) were actually talking on the cell phone trying to haggle the price when the one got it from the cops. I had both of them saying I wasn't involved and it didn't matter at all. This was about 12 or 13 years ago during an election year and they were tough on crime.

Sometimes you will be in just as much trouble just being there until you can prove your innocence. The cops kept saying they were going to take my cars and sell them and all that shit. Fortunately, My job easily payed enough to cover my "lifestyle" and they couldn't find anything indicating I was selling drugs to support it. And yes, they had my banking records and frozen my accounts for 2 months when my lawyer was finally able to got them back. They charged me with conspiracy, trafficking, possession with intent (which was part of the conspiracy) resisting arrest (because I wasn't on the floor fast enough), then they attempted to say I could plead out to on charge of possession and get 5 year probation. Of course I refused and fought it but the guy who drove me there took the deal and got hit for being in the wrong place at the wrong time. I was still out almost $5000 though and had a bunch of checks bounce when they froze my accounts.

My advice, if you see it happening, throw it out or move out yourself. Maybe breaking it a couple of time would force them to keep it locked away. It just isn't worth it if your not doing it "too". Pot alone is a little more relaxed then an 8 ball of cocaine and a few quarter bags. But I could easily see a cop being an ass and trying to make an example or something. My lawyer said if it wasn't an election year when it went down, I would have probably been let go the day it happened.

Oh, for the love of...

[Perseid]

Is everyone suing everyone for everything? It's getting to the point where if I hear about a lawsuit my first thought is that the plaintiff is trying to take advantage of someone. If that a sign that I'm an extreme cynic or that there's something really wrong out there?

Re:Oh, for the love of...

[Tomy]

"Tuez-les tous; Dieu reconnaitra les siens."

To paraphrase, "Sue 'em all, let the courts sort it out."

WTF???

[photomonkey]

The speedometer on my Jeep goes up to 100mph. Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

Generally, I'm excited when anyone fights the maFIAA, but in this case, I hope she loses badly so she'll learn about pointing fingers.

Re:WTF???

[whoever57]

Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

My first thought was similar, but the complaint has an interesting point: AOL offers parental controls. If those controls don't keep your child from using the computer in an illegal manner, are they defective and does this make AOL liable?

To use your car analogy (usually a bad idea), Chrysler sells the car with a parental control which they claim will keep your kids out of trouble and your kids are stopped doing 100mph in a school zone, does Chrysler have any liability?

Re:WTF???

[Opportunist]

My computer runs anything that is a valid Win32 executable. Does that mean if I get infected with a trojan after double clicking something sent to me called invoice.pdf.exe that it's MS's fault and not mine? Did MS take measures to prevent me from running just any kind of program?

Sorry if it sounds like mockery, but in this case it's actually the case. We blame MS. We blame the trojan writer. We do not blame the clickmonkey who can't resist double clicking everything he sees. Why is that so? Why is it excusable to use zero brains when accessing a computer, claiming it's "too hard" or "too limiting" to take responsibility and instead blame the manufacturer of the system?

You have no idea how hard it was for me to write this, since I do blame MS for a lot of things, many rightfully, but they are actually only partly responsible for the amoung of malware currently circulating. Until the advent of MPack, nearly all widely spread malware used user stupidity as the key attack vector, requiring user interaction and actual "help" from the user to infect a system. Why is the user not liable for stupidly clicking everything he sees?

umm, no

[cyphercell]

the failure to block the downloading of such files by AOL;

No, AOL should not block files that I am downloading at all.

This would set TERRIBLE FUCKING PRECEDENT

[karmaflux]

I hope this chick loses. If she wins this idiotic suit, it would set legal precedent that it's the ISP's responsibility to police its users. That's just about the worst possible idea ever.

Definition of EULA (from the complaint)

[whoever57]

1 "End User License Agreement," a contract of adhesion, abominably long, written in tiny print, which no one reads.

Rights Based Society

[Vader82]

We've done a very good job of engineering a rights-based society here in the United States. But unfortunately for us, there has been little-to-no mention of any kind of responsibility. And as the legal profession has slowly figured that out our society has grown more and more responsibility averse.

There is no motivation to take responsibility for anything since you aren't forced (or even encouraged) to. By freely granting all rights without associating any responsibilities we've created a system that doesn't have enough incentive for good behavior. And we're reaping it with every frivolous lawsuit that bogs down our legal system.

I hope either we eventually figure this out and evolve to a system with a good rights/responsibilities balance, or after our country eventually declines that future generations will take the lessons we've learned to heart and not make the same mistakes.

Re:Rights Based Society

[NoMaster]

I'm normally one of the first to shout 'grow some balls and take responsibility!' when things like this come up, but she does have a couple of points:

• the improper blocking of alleged (RIAA) warning messages by AOL and Sharman: This is interesting. If AOL (or, somehow, Kazaa/Sharman Networks) prevented her from receiving warning messages which may have caused her to stop, then any infringement after those messages were sent may be at least partially down to them. If so, they they should take some of the liability.
• the secretive file sharing system of and by Kazaa: This is a goodie! Any normal & reasonable user expects a program to stop running when you click the 'close' button, right? Kazaa kept running in the background ! If a user takes reasonable steps (i.e. clicking that 'close' button) to stop infringing, and yet the program continues on infringing, whose fault is that ? The user has tried, in good faith and to the best of their knowledge, to avoid further infringement - but the program decided that it knew better...

As I said, interesting...

Re:Rights Based Society

[number11]

It's hardly secretive though. The icon is in the system tray at least.

The average user (who doesn't read /.) doesn't have a clue what all that crap on the system tray is. Take the average consumer computer that comes with all those convenient preloaded programs, it's got about 25 tiny inscrutible icons down there, the only one they've figured out is the clock. Maybe. So they ignore all that stuff.

And half the time Windows hides those icons anyhow.

Re:Rights Based Society

[Alsee]

it's got about 25 tiny inscrutible icons down there, the only one they've figured out is the clock

Holy shit! Those little numbers in the corner are a clock?
Daaaaamn! You're right! The numbers in the corner of my computer are almost the same as the numbers on the front of my cable box! That's neat!
I'm really starting to get into this computer stuff. I learn something new almost every month.

-

This could be more interesting than it looks

[Opportunist]

Sure, sounds silly. You have Kazaa on your computer, so who's responsible for the downloads?

If Kazaa was a trojan, it wouldn't be the user. So I'm quite interested in seeing how this turns out. Is ignorance a defense? It is usually in the case of computer malware, where you can act as irresponsible as you want and click on anything and everything. You're not liable for it, whether you become the spamchucker of the week, another drone in a DDoS attack or a launching point for more malware, you're off the hook. You're too dumb to understand it, so you're not liable.

I'll be waiting for that verdict. Is ignorance an excuse? Are you responsible for your computer's actions? I could well see this becoming an interesting turning point in the question who's liable for your computer's actions.

Unlike the previous posters to this thread..

[GeneralEmergency]

...I think this is an interesting legal strategy. This appears to me to be a tactic to grow this case exponentially in size and thus cost, complexity and duration.

Let 'em litigate this for 3 years.

I'm only surprised that they didn't assert that the plaintffs are partially liable for continuing to publish DRM free CDs long past the point when they knew that tools and techniques existed which permitted these tracks to be ripped and shared.

Hmmm...I'm still wondering if that last paragraph of mine is a joke or not.

With lawyers involved, I suppose you never can tell.

She forgot....

[toppavak]

to sue Microsoft because Windows allowed the installation of software such as Kazaa and the manufacturer of her computer for allowing the installation of a Windows that allowed the installation of Kazaa and the local power company for permitting the operation of a computer which allowed the.... oh you get the point

RIAA should hire the wench

[Anonymous Coward]

She's obviously proved she has what it takes to work for the RIAA.

All part of the master plan...

[RingDev]

1) Extend the trial
2) Sue for legal expenses
3) Gouge Elektra for $200,000 due to extra court costs due to motions
4) ...
5) Profit

Step 4 has something to do with getting the lawyer who just got a $200,000 paycheck to cut you in on the deal ;)

-Rick

I disagree...

[EdBear69]

Take responsibility. Stand up and declare your rights.

Don't weasel out by blaming the other guy.

While I'm not sure what you mean by 'Stand up and declare your rights', I'll let it go and talk about weaseling for a second.

In this case, the defendant claims to have done nothing wrong and to be guilty only of the following:

• 1. owning a computer
• 2. having an aol account
• 3. allowing the computer to connect with the internet
• 4. not monitoring their computer to ensure it was not being used for illegal activity

Taken at face value, I don't see any weaseling going on. The only seemingly weasel-ish aspect is the way that the third party complaint spreads across so many defendants. This, however, is perfectly acceptable in the legal system if, again, you take the original defendant's testimony at face value.

The way I see it, Miss Santangelo is basically saying, "I didn't do it. It's not my fault. I don't know who is responsible, but it's probably one of these guys, let the court figure it out."

It's not that she's accusing aol and Sharman as much as she's saying that they had more to do with any infraction than she did.

Looking at how this looks for precedence, I'm interested to see how this turns out. We currently have laws that hold a bar liable if a patron gets a DUI on the way home. Bars serve alcohol, it's what they do. But they get in trouble if people use their product illegally. By the same token, aol supplies internet access. Should they be held completely harmless if people use their product illegally? If so, why is there a double standard between bars and ISPs?

Re:I disagree...

[Lesrahpem]

I think ISP's fall more along the lines of something like a telephone company. Does the telephone company get in trouble if you use their service to make prank calls? No, not as long as they assist the police when someone misuses their service.

She sort of has a point. at least on some of it.

[Eskarel]

For one, if she didn't install or knowingly use the software it's questionable whether she's responsible.

Second Kazaa as it once existed tended to at least attempt(if you didn't actively tell it not to, which if she didn't install it she didn't get a chance to choose) to share pretty much every music file on your PC. If she had a legitimate music file on her PC Kazaa would have attempted to share it with the outside world leading to infringement. This was always bad design in every program tham implemented it(it's alright in a media player, but not in a file sharing utility, it'd be like having apache automatically make all your documents available.

Thirdly the RIAA is presumably alleging that they sent warning e-mails to this girl or her parents, and the girl and/or her parents are apparently alleging that they didn't get them. The suit against the ISP means that the ISP will be required to prove whether those e-mails got through or not and wether they ever got to them in the first place. If they did block them then there's a case there, if they didn't arrive then the RIAA loses their "she knew it was wrong and kept going" angle and look more like vultures going after a little girl who didn't know what she was doing.

Her suit about the ISP blocking the files is of course bollocks and should and likely will be tossed out(presuming that the ISP wasn't offering some sort of parental filtering service at cost in which case there's a case there too).

precedent already set?

[doug141]

Wasn't this precident set when tobacco companies were sued for lung cancer?
and fast food for obesity?
and gun dealers for crime?

Re:This bitch better lose

[BronsCon]

or having to physically fight to keep them
This would be the best case scenario, as we would not only keep our few, remaining, rights; we would regain all of those which we've lost in the last several years.

Many people I know, including myself, are waiting for widespread support for just this.

Re:Oh I get it

[anagama]

Perhaps you are in school. That 10 page paper you wrote after spending 10 hours in the library, 5 hours in writing, and 3 in revising, is worth about 0.7 cents per page in paper costs ($3.50/500 page ream) and 1.14 cents in toner per page ($200 cart @ 17.5k pages) for a grand total of 1.84 cents per page. Your paper is worth just over 18 cents. That means your time is worth 1/100th of a cent per hour. In a few years, you might graduate and your work might be worth 2 or even 3 times as much.

No, ya don't. Elektra is AOL subsidiary

[MacDork]

Looks like entrapment by AOL. Elektra sues AOL for subscriber records... oh wait, Elektra IS AOL, or was at the time. Elektra is owned by Warner music, meaning owned by Time Warner, which as everyone knows, was bought by AOL during the dotcom boom... So, new business model:

Provide internet access.
Monitor usage.
Allow users to download music freely
Profit!!! (Sue users who download AOL music. Put competitors out of business with illegal downloads)

That's just dirty... By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. Also keep in mind that Kazaa is infamous for bundling malware with their product. If Kazaa was installed, who knows what kind of backdoors were left open by their "product."

Personally, I feel sorry for the kid. Too many lawyers and greedy bastards all the way around. If the kid had stolen a physical cd, it would have been a minor issue, not years of misery and thousands of dollars in court. Whatever happened to having the punishment fit the crime?

Re:Oh I get it

[Yez70]

Interestingly enough, thats actually more (18 cents) than an artist gets per song.

The RIAA, record companies and their distributors get the rest.