RIAA Will Finally Face the Music In Court

Falstaff writes "Exonerated RIAA defendant Tanya Andersen is expected to refile her malicious prosecution lawsuit against the RIAA today. The refiling will mark a significant watershed in the RIAA's fight against P2P users because for the first time, the group's tactics, secret agreements, and fee splitting with MediaSentry are likely to come to light, thanks to discovery. Andersen's attorney says he'll be 'digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.' The judge has barred further motions to dismiss the complaint, which means the RIAA will have to face the music. 'Unlike the thousands of lawsuits filed so far, the RIAA does not have the luxury of walking away from this case if there's a real chance of embarrassing information being released. "Once discovery happens in the cases the RIAA brings, they run," Lybeck says. "This is our case now, and they can't run."'"

Comments

If She Doesn't Settle

[j.sanchez1]

The judge has barred further motions for dismissal, so unless the RIAA decides to settle--a move Lybeck believes is in the group's best interest--the case will proceed through discovery and to trial.

Hopefully she won't settle for the carrot that the RIAA would probably dangle in front of her. She has the opportunity to bring all these lawsuits to a screeching halt.

Re:If She Doesn't Settle

[BUL2294]

The RIAA could easily dangle a $1-2 million carrot in front of her, and probably will. While we all know she shouldn't take it, most sane people (and probably her lawyer) would say "take the money and run" to not have to deal with this issue for the next 5 years...

Call me a pessimist, but her case against the RIAA will not change their tactics because they will buy their way out of the mess.

Now, if some DA or AG were to file criminal charges against the RIAA (God knows the FBI won't), then that would change their ways... But, alas, we live in the Corporate States of America.

Re:If She Doesn't Settle

[AGSHender]

My girlfriend worked for Judge Brown last summer as a law student, and she had a consistently favorable opinion of her. Judge Brown is a Clinton appointee and is on the more liberal side of the bench compared to a couple of the other federal judges working in the same building.

She's fair and doesn't put up with bullshit from lawyers or defendants. If she finds in favor of the RIAA, it's going to be on the basis of the law and not because of pressure on her. At the very least, she's going to be very suspicious of their arguments and have some critical things to say about them and their tactics in open court--even if they do win in the end.

Re:If She Doesn't Settle

[RyoShin]

I agree, and the best way to do this may be societal support. I don't know Ms. Anderson, so I have no idea what qualms she has about a material settlement out of court. She may very well be willing to do this for the long haul, just to make the RIAA STFU & GTFO.

However, even if she's set on this, showing support from the outside will help her (and her lawyer, who I'm sure is hoping for a nice chunk of change) to reaffirm her will. If she's not completely set on it, outside support would help her see that this has effects reaching more than just the time the RIAA forced her to waste.

The best way I can think of to do this is a personal letter. Something short, personally signed, saying "You're fighting the good fight, tally ho!" and made via snail mail. Obviously, getting her home address might not be the best idea. Does anyone know a good way to go about this? Perhaps send mail to the law firm/individual representing her?

Re:If She Doesn't Settle

[Opportunist]

That's not necessarily a victory for the RIAA. Because what works once works twice, too. In other words, being sued falsly by the RIAA might be the jackpot.

I'm fairly sure we'll soon see lawyers hopping onto it, specializing in counter suits against the RIAA if they simply try to buy their way out of an embarrassing trial. It's easy money for them.

Re:If She Doesn't Settle

[Entropius]

So we outbid them.

Get a million people together (shouldn't be hard if all the torrent sites make note of the campaign) to chip in $1 or $10 each to make a matching offer: "We'll pay you to take this to trial."

Even if the RIAA outbids The Internets, it's still a PR coup -- "Look at what they were willing to do in order to hide stuff..."

Re:If She Doesn't Settle

[u38cg]

Her lawyer's address is:

500 Island Corporate Center
7525 Southeast 24th Street
Mercer Island, Washington 98040-2336

It's a relatively small practice - two partners and a dozen attorneys all told - so I would expect that anything mailed to Tanya Anderson c/o Lory Lybeck will reach her attention.

Re:If She Doesn't Settle

[CRCulver]

Judge Brown is a Clinton appointee...

It was Clinton who gave us the DMCA. Not just Republican administrations are corporate puppets.

Re:If She Doesn't Settle

[Mateo_LeFou]

hm...
RIAAmbluance chasers?

better name?

Re:If She Doesn't Settle

[Buelldozer]

That is a DAMN good idea. I'd easily contribute $20 or more to a cause like that.

Re:If She Doesn't Settle

[hAckz0r]

Less we forget that she can still get that $2 million+ at the conclusion of the trial? If the RIAA thinks that a mere $2 million will cut the trial short and hide their dirty laundry, then they have seriously under estimated the wrath of a woman who has been royally PISSED OFF. Knowing what they put her through I can't imagine her settling before the RIAA's bag of tricks are all spread out on the table for everyone to see. Can you just imagine what a jury would think? Thats when the real music (that they don't own) begins to play.

Re:If She Doesn't Settle

[Dragonslicer]

It was a Republican-controlled Congress who gave us the DMCA. Fixed that for you.

Re:If She Doesn't Settle

[AGSHender]

Judging by the grandparent poster's reference to his law-school gf, he's probably too young to recall the Bill Clinton era. Ahh, you've gotta love the youth vote. To be young and idealistic instead of old and practical again... I remember all of the Bill Clinton era, and I have a degree in Political Science partially inspired by my experiences in the 1990's, for what it's worth.

I also seem to remember that the DMCA being passed unanimously by both the House and the Senate before Clinton signed it into law. You want accountability for bad laws? Talk to your legislators.

My point about Judge Brown being a Clinton appointee was merely to help elucidate where she falls in the political spectrum, and you do a disservice to judges everywhere by reflecting any "sins of the father" on appointees of any President. Was Sandra Day O'Connor partially responsible for the Iran-Contra scandal because she was a Regan appointee? Is Justice Alito complacent for his role in any laws that may have been broken by the Bush administration purging thousands of emails by being a Bush appointee?

I think the answer you're looking for is no, they are not. Get some perspective, old-timer.

Re:If She Doesn't Settle

[Plutonite]

My girlfriend.. Heh, I almost read the rest of your post. Nice try there ;)

Re:If She Doesn't Settle

[dgatwood]

I also seem to remember that the DMCA being passed unanimously by both the House and the Senate before Clinton signed it into law. You want accountability for bad laws? Talk to your legislators.

Exactly. If a law is passed with more than a 2/3rds majority, vetoing the law is a pointless gesture of defiance and gains you nothing except a couple of weeks. A law would have to be really heinous for you to piss off Congress by defying a unanimous vote, and the DMCA just doesn't rise to that level. Besides, I think a lot of people assumed the courts would overturn it as having an unconstitutionally long term anyway. They didn't, in large part due to all the Bush Sr. and Reagan appointees on the court.

Clinton didn't give us the DMCA. The predominantly Republican legislature did. He was completely powerless to overturn the law. There's no way to know if he would have signed it had it been passed by a narrower margin. That said, I would love to see every Democrat in Congress who voted for that law sitting on the curb begging for change.

Re:If She Doesn't Settle

[Robber Baron]

So we outbid them.

Get a million people together (shouldn't be hard if all the torrent sites make note of the campaign) to chip in $1 or $10 each to make a matching offer: "We'll pay you to take this to trial."

Even if the RIAA outbids The Internets, it's still a PR coup -- "Look at what they were willing to do in order to hide stuff..." That's a terrible idea. What does it say about the constancy of Justice? That it can be perverted and sold to the highest bidder?

Re:If She Doesn't Settle

[element-o.p.]

That's a terrible idea. What does it say about the constancy of Justice? That it can be perverted and sold to the highest bidder?
You mean as opposed to what we have now? Oh, wait...

Re:If She Doesn't Settle

[Dhalka226]

In a technical sense you're right, but that entirely ignores the political aspect.

If the DMCA passed with a veto-proof majority--and I seem to recall that it did--vetoing it will serve no practical purpose other than delaying it slightly and getting his name off it. That's nice in a "principles > all" sense, but it also weakens him as president for no gain. That means when even worse legislation comes up, with something much closer to the <66.6% support for his veto to be worthwhile, it will be that much harder to kill that bill. The opposition will rally around "let's kick him while he's down!" and the president's own party will have more trouble getting anybody to stand by or switch their votes for fear they're going to lose anyway.

None of this is to say that Clinton didn't ACTUALLY support the DMCA; he might very well have. It's simply saying that a president not vetoing a bill doesn't automatically mean he supports it. I wouldn't hold a president responsible in a situation like that where his veto does nothing anyway. (Though ironically I'd personally think better of him for doing it in the face of all those reasons not to.)

Re:If She Doesn't Settle

[pyrr]

It wouldn't be about selling justice to the highest bidder, it would be about offering someone who was wrongly accused and maliciously prosecuted by the RIAA an incentive to take a gamble and see justice done. If all the RIAA has to do is flash some large bills and have their legal problems go away, then justice isn't served.

The proposal to raise money to encourage the plaintiff to not settle her case and let the courts decide the matter would create a nice hedge for the plaintiff just in case the RIAA makes her a better offer than what a jury might award. It's important for this case to proceed, because without taking the RIAA to task on its methods in a case that forces it to come clean on everything, it's basically a corporate sniper, shooting down one individual after another, bamboozling courts with technobabble, and in most cases the individuals don't really have the resources to take their cases to court even if they may have been wrongly accused. Ever notice how they've been picking on mostly lower-income people, students, the elderly, young families, children, single parents-- the very folks who are the least likely to have the resources to wage a court battle and are most likely to settle whether they're guilty or not?

Airing the RIAA's dirty laundry in regards to its methodology is the only way to help individuals who are being picked-off one by one. And getting together and pooling resources in order to defend the collective of internet users who may find themselves in the RIAA's crosshairs is really our best hope of having a fighting chance to defend ourselves against false, nebulous accusations that could cost any one of us thousands of dollars whether we shared anything or not. If their methods are really that sloppy and inaccurate, nobody should assume that just because you PERSONALLY didn't share, that you're immune. I don't lose sleep over my former roommate's filesharing over my network (my house, I paid the bills for everything, and shared it under the rent), but if the RIAA's methodology isn't airtight (and it obviously isn't), I want the world to know...just in case.

Re:If She Doesn't Settle

[Anonymous Coward]

How many BritneySpearsSux.mp3 type parodies (or content owned by non RIAA members) has the RIAA and MediaSentry already downloaded/uploaded? Almost none.

I work for an ISP, and part of my job description is dealing with abuse complaints (including DMCA complaints.) The usual modus operandi when we receive a complaint is to verify that the address was in use, verify that traffic was coming from that port, and then send the user's name back. Someone else (not me) also contacts the user.

A few weeks ago, we got a request from a user who wanted to use the network to do research (it's a college town)--specifically research related to Bit Torrent. They wanted permission to conduct this research, and assured us that they would not be engaging in copyright infringement. They had written a special client which advertises hashes of the torrent, but never sends data.

Fast forward to about a week ago--two MPAA complaints against their IP address. We could also verify that there was no way that they were sending or receiving files--their traffic usage was actually pretty small.

My assumption based upon the data is that the company who sent the DMCA notification just looks at the IP addresses that the tracker advertises is a part of the swarm. They don't bother to download and verify that the torrent is what they think that it is, and it's in-line with other debacles of the sort (remember the usher mp3 one from several years back?), as well as some anomalies we'd seen where a notification time was shortly after a person had released their DHCP lease (sometimes the trackers don't immediately notice when a user has disconnected.) I'd love to say that I'm shocked, nay horrified that they would gather evidence in this way, but frankly, it makes good business sense. Why waste the time downloading every file? Almost everyone who gets tagged has been infringing copyright--there just aren't that many 'fake' files out there. And since almost everyone is actually doing it, they'll almost all settle. Those few who do not are easily handled by simply dropping the case.

For this reason, I would expect that blacklists like Peerguardian wouldn't really work all that well. Lots of people give me anecdotal evidence when I bring this up ("Well it works for me!") but that's kinda like saying that this elephant repellant is working because there aren't any elephants on my front lawn. I know a lot of people who engage in a lot of filesharing, and none of them have ever gotten DMCA complaints. Just based upon the number I see in my job, I know that they're not sending them to very many people, in general.

Gentlemen, start your paper shredders

[AbsoluteXyro]

I fully expect the RIAA to do everything in it's power to hide any so called "embarrassing" information, probably successfully so. I hate to be such a pessimist but the fact of the matter is multi-million dollar corporations will always have the upper hand in this sort of thing. I got my fingers crossed though, hopefully someone will finally slay the dragon.

Re:Gentlemen, start your paper shredders

[hedwards]

Which isn't much, unless their attorneys can convince the judge not to allow investigation into these charges. Which they shouldn't be able to, the only way that they're going to be able to avoid answering them is by witness tampering or other methods of obstruction of justice.

Which isn't good, if there's one thing which judges don't like it's having their cases tampered with in that manner. I'm just surprised that it's taken as long for the judges involved to start getting cranky about being used.

Re:Gentlemen, start your paper shredders

[Phrogman]

Actually, if a defendant is unable to produce evidence because it appears to have been deleted when it should be available, a court will usually take that into consideration and may assume that the defendant did that to hide something, and thus hold that against them. The reverse is of course true for the prosecution if they are likewise unable to produce evidence, although the courts will hold an individual to a more reasonable requirement than a large organization which is expected to maintain a higher standard.

Its only if they have a reasonable data retention policy already in place, and can show that the deleted or destroyed information or records were destroyed in accordance with that plan - and that they have been following that plan rigorously and not just in this one instance, that they can justify not producing the records. If for instance they have formally established and been following a records retention policy whereby they state they will destroy email records after holding them in backup for say a 5 year period (higher in some industries where its specified by law how long you must preserve those records), and have done so and thereby cannot produce records from before that period, then a judge should not hold it against them during discovery. They made a plan, stuck to it prior to entering litigation, and the court has to recognize there is a cost associated with maintaining and backing up such data that should have a logical limit when the utility of that data has been reduced by the time that has passed. If however they have not followed that policy, don't have such a policy, or give the appearance of selectively applying it to hide potentially damaging evidence, they can have it held against them (possibly with the assumption that the information in question was damaging), and they can be fined by the court. They can even have the court summarily find in favour of the prosecution. They can be fined if they cannot produce the evidence in a reasonable period of time, and will usually bear the brunt of the cost of producing those records - no matter how difficult or expensive that may be - as long as the other side can produce sufficient cause to justify the importance of that evidence to their case. Sometimes the other side can be required to pay for some of the cost of course, if its reasonable. This can be extended well beyond physical records and emails, to include IM traffic, chat logs etc, all of which an organization bears a responsibility to back up and maintain. You can even be held liable if your backups cannot be restored due to changes to technology over time - you are expected to transfer those backups to a new format, or maintain the old equipment required to restore them etc. If you failed to place backups in offsite storage and they were destroyed in a fire, thats your fault too for not taking reasonable precautions and storing the backups elsewhere. I expect a few companies are going to get bit badly in the next few years when they cannot produce backups of all the IM traffic that passed over their networks for instance - because if anything that happened during those IM sessions has any bearing on anything legal, its a record that needs to be backed up, period. If you and I discuss a business deal, and then I send you an email that just says something like "About our conversation yesterday, lets do it" and the lets do it implies a verbal agreement to pursue a business deal, that email is a legal record, same thing if we agree via IM chat :P

So simply removing evidence by destroying it is not necessarily of any benefit to an organization when they hit the courts. The courts can and should take a very dim view of someone who deliberately destroys damaging evidence :P

IANAL, but I used to work for some who dealt with records retention, discovery etc, and picked up some of the details. Its surprising how many companies and organizations do not have and do not follow a logical retention policy with regards to data (apparently about 40%

I found the "???"

[iknownuttin]

Lybeck tells Ars that he'll be digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.

I see...

1. Get contract to find copyright violators.

2. The "???" is: Just grab folks that may look guilty.

3. Profit!

RIAA Karma

[imstanny]

RIAA's current Karma: Troll.

Judge Says: Overrated.

Facing the Music

[auroran]

I'd love to see the RIAA face their own music.
That alone should be suitable punishment for the stuff that they've tried to inflict on the general public. :)

Re:Facing the Music

[Opportunist]

I'd love to see the RIAA face their own music.

Now, now... I don't like the RIAA one bit either, but considering the music they produce... No, I'm against torture in any form. Not even against the RIAA.

Face the music

[Volante3192]

The judge has barred further motions to dismiss the complaint, which means the RIAA will have to face the music.

Since the RIAA already owns the music, I guess this won't really frighten them much.

Re:Face the music

[robinsonne]

Have you listened to some of the crap they're selling these days? Just imagine being trapped in a room with some of that playing non-stop.

I'm not afraid!

You will be. You will be.

Re:Face the music

[moderatorrater]

And the court has to pay licensing fees to use that music. But still, it should be awesome.

Where's NYCL when you need him?

[Orange Crush]

IANAL, but it sounds like the RIAA is going to want to settle and prevent discovery from happening since they don't want all the sordid details of their dealings brought to light.

But that makes me wonder . . . if they do in fact settle, won't this just embolden all the other lawsuit recipients to file against the RIAA too? They can settle malicious lawsuits to keep them from going to trial to their heartss content (*snicker* we know they don't have hearts), but ultimately they're going to have to either WIN a malicious prosecution suit or stop engaging in malicious suits alltogether, no?

Re:Where's NYCL when you need him?

[frieked]

The NYCL aka Ray Beckerman gives his thoughts on these new developments over on ARS...
http://arstechnica.com/news.ars/post/20080313-andersen-attorney-on-riaa-suit-they-cant-run-now.html

Re:So...

[Sinryc]

Not at all. Its a good thing to want to see how a group(The RIAA) does its dirty laundry.

Keep Legal Filesharing Legal

[MichaelCrawford]

The RIAA and MPAA, as well as their counterparts in other countries, have been pressuring legislators, ISPs and Universities to block all filesharing. But much filesharing is completely legal, and needs to be kept that way.

For example, many Open Source installers are available via BitTorrent. Their use of p2p is crucial to their success, because it reduces distribution costs.

P2P is also crucial to the success of struggling musicians who offer their music online for free, as a way to promote themselves. Direct HTTP downloads can lead to bankrupcy if their songs become sudden hits. I myself offer Bit Torrent downloads of my piano compositions.

(While I presently work as a software engineer, I'm studying piano with the aim of changing careers into music. You could really help me out if you shared my music over the Internet.)

In your letters to your legislators, please emphasize the legal uses of P2p.

Re:Keep Legal Filesharing Legal

[whoever57]

I myself offer Bit Torrent downloads [geometricvisions.com] of my piano compositions.

And the RIAA would love to shut you down, since you represent competition to the RIAA member companies. Perhaps you even represent a trend that will destroy the RIAA and the RIAA is like a cornered wild animal -- at its most dangerous.

Settlement should not be an option

[Basilius]

It is common for judges to promote settlement in cases where the victor seems obvious in order to reduce the load on the court system.

In this particular case, pursuing it to the full extent should actually REDUCE the burden on the court system by severely restricting the RIAA's ability to file new suits.

The only way I could see a settlement working in the long run is if it's equivalent to an unconditional surrender with all sorts of guilt admissions. I just can't picture the RIAA agreeing to that, and the plaintiffs should not settle for less.

THIS is the opportunity. Do not let it slip through your fingers.

They'll be facing the music?

[JK_the_Slacker]

PLEASE tell me it's William Hung!

Re:What y'all cheering for?

[zzsmirkzz]

::Being Rant:: First of all, it is not stealing! It is copyright infringement. I'm damn sick of people confusing the two, they are not the same; they are not interchangeable. Stealing is clearly defined, Copyright Infringement is also defined; downloading music over the Internet is in no way stealing, period. It may, arguably, be copyright infringement, depending on the specific circumstances. ::End Rant::

Second, what does it matter if we have committed copyright infringement? We are still a member of society who has an interest in seeing the innocent not being railroaded by the Music Industry. We still have an interest in stopping the Music Industry from illegally violating our rights, hacking into our computers (Federal crime by the way, much worse than copyright infringement), and extorting people for large sums of money.

Re:What y'all cheering for?

[Orange Crush]

Whether or not people here illegally download and share copyrighted music isn't the issue. I'll go out on a limb and suggest that most Slashdotters don't file baseless lawsuits against random people who are unprepared to defend themselves from the full force of a massive corporation's legal department realizing most will capitulate and just settle regardless of any wrongdoing as a tragically misguided attempt to strike fear into the heart of someone who gets the latest Britney Spears release from bittorrent.

Big companies are abusing the legal system due to circumstances brought about by new technologies and the Internet. Meanwhile real (and innocent) people are having their lives and livlihoods ruined in the crossfire. So yes, we care a lot about that.

Chances

[Ihmhi]

Yes, there is the the chance that she will settle.

But from what we have seen from this woman, well... I think it's pretty obvious that she is very pissed and she will not settle for anything less than victory in this.

If I were in this position, I would be recording every phone call and saving every e-mail. I hope they're dumb enough to try to threaten or bribe her, because she seems like the kind of person who is going to make that kind of information public and make the RIAA look much worse than they already do.

Re:They'll Just Change Tactics

[rijrunner]

    Except, in this case, full discovery is not going to lead to a small win. If it is determined that they have knowingly engaged in illegal activity - and there is a lot of circumstantial evidence that their investigation fits that category - then, they are in a pretty bad spot. A security company not licensed in a state can not engage in investigations in that state. That is illegal. They can not install root kits across state lines, that is illegal also. Hacking is illegal. While the RIAA can claim that they themselves did not commit these acts, it is a reasonable conclusion that they would have encountered any number of these questions in any due diligence prior to awarding security contracts. It is also reasonable that they are aware of the legal issues because of that whole Sony root-kit mess a few years back.

    And lawyers who are providing legal advice how to break laws are called co-defendants, not attorneys and they do *not* have attorney-client confidentiality in conspiracy and RICO cases where they are named as co-conspirators.

    The fear goes away if you know they have no evidence they can present in court.

    The RIAA is a trade organization. If you can crack some of their larger members away - and that is quite possible - then the RIAA loses its ability to speak for the industry. The RIAA has not paid out a single penny from any settlement it has won. Add on a lot of punitive damages and criminal charges and the RIAA can be broken quite decisively.

Re:What y'all cheering for?

[TobyRush]

Come now, it's simple, really:

y'all - singular subject or object. "Y'all bring a truck?" = "Good sir, did you bring your cargo vehicle?"
y'alls - singular possessive. "Is that y'alls truck?" = "Does this vehicle belong to you, my good man?"
all y'all - plural subject or object. "All y'all git yer guns?" = "Gentlemen, did each of you bring a sidearm?"
all y'alls - plural possessive. "Are all y'alls guns in the truck?" = "Sirs, are your firearms all stowed in the vehicle?"