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RICO Class Action Against RIAA In Missouri
Posted by
kdawson
on Fri Nov 21, 2008 12:49 PM
from the take-'em-down-dano dept.
from the take-'em-down-dano dept.
NewYorkCountryLawyer writes "In Atlantic Recording v. Raleigh, an RIAA case pending in St. Louis, Missouri, the defendant has asserted detailed counterclaims against the RIAA for federal RICO violations, fraud, violation of the Computer Fraud and Abuse Act, prima facie tort, trespass, and conspiracy. The claims focus on the RIAA's 'driftnet' tactic of suing innocent people, and of demanding extortionate settlements. The RICO 'predicate acts' alleged in the 42-page pleading (PDF) are extortion, mail fraud, and wire fraud. The proposed class includes all people residing in the US 'who were falsely accused ... of downloading copyrighted sound recordings owned by the counterclaim Defendants and making them available for distribution or mass distribution over a P2P network and who incurred costs and damages including legal fees in defense of such false claims' or 'whose computers used in interstate commerce and/or communication were accessed ... without permission or authority.' This is the second class action of which we are aware against the RIAA and the Big 4 recording companies, the first being the Oregon class action brought by Tanya Andersen, which is presently in the discovery phase."
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I'm a huge pirate... (Score:5, Funny)
Re:I'm a huge pirate... (Score:4, Funny)
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Re:I'm a huge pirate... (Score:4, Funny)
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Re:I'm a huge pirate... (Score:5, Funny)
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Funny story (Score:4, Funny)
The problem is, I forgot all about it for roughly 2 years.
Right up until the time I had to call my ISP about something. The tech on the other end asked me what kind of router I had and when I told him, he says "No, you don't have (brand x)". I'm thinking "wtf is he talking about?" because the router is, literally, right there in front of me. So we argued about it for about 10 minutes and I finally got done what I needed.
After we hung up, I realized why he was asking....
Now, I can't help but wonder whose router he THINKS I have? Who the hell would use DEADBEEFBABE as a default MAC address?
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Re:I'm a huge pirate... (Score:5, Funny)
Do you live in St. Louis? I'm not with the RIAA*, I am a fellow youngster living in St. Louis who would like to recieve some illegal stolen music from today's popular artists, then maybe go and drink an alchoholic beverage with you. I have videogames that we can play as well. We can "hang out." I want to emphasize that I am not with the RIAA*.
(* RIAA here does not refer to Recording Industry Association of America)
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Re:I'm a huge pirate... (Score:5, Funny)
Do you live in St. Louis? I'm not with the RIAA*, I am a fellow youngster living in St. Louis who would like to recieve some illegal stolen music from today's popular artists, then maybe go and drink an alchoholic beverage with you. I have videogames that we can play as well. We can "hang out." I want to emphasize that I am not with the RIAA*.
(* RIAA here does not refer to Recording Industry Association of America)
I'm in St. Louis, and would love to meet. There's a nice dark alley on Pine between N 11th and N 12th, we could meet there. I assure you that I do not have a gun*.
(* the word 'gun' does not refer to any type of firearm)
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Re:I'm a huge pirate... (Score:5, Funny)
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"falsely accused"? (Score:4, Interesting)
Re:"falsely accused"? (Score:5, Funny)
In the USA, we are supposedly innocent until proven guilty in a court of law. Thus, you can claim you are falsely accused up to the point where a judge banks the gavel and declares you guilty.
At least, that is what my elementary school teacher taught me back in the 70's.
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Re:"falsely accused"? (Score:5, Insightful)
Exactly, these people were targeted by the RIAA who has no proof of infringment and abuses the system.
Whether or not they are actually guilty, the RIAA should be providing proof, which they are incapable of.
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Re:"falsely accused"? (Score:4, Insightful)
Here's the thing, though. The RIAA does have some information. They're not suing people at random--they're suing people that they believe have done something wrong. Their methods are almost certainly unsound, and their theory of what constitutes infringement is questionable. Their evidence for infringement is generally weak. And their attempts to strong-arm people into settlements is also unsettling.
However, whether this constitutes criminal behavior is also questionable. The RIAA can claim that they have a reasonable belief that they've sued are the right people. They can argue a reasonable belief that they will prevail in court. And they can claim their settlement offers are reasonable within the standards the law currently provides. The RIAA may be wrong about all these things (and probably are), but that doesn't necessarily mean what they're doing is illegal.
Not everyone who brings a lawsuit and loses is a criminal.
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Re:"falsely accused"? (Score:5, Insightful)
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Re: (Score:3, Funny)
Re:"falsely accused"? (Score:5, Funny)
I used FDR of raping me years after he died, and won.
FDR raped you years after he'd died...?!
OMG ZOMBIESECKS!!!!!1111111
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Re:"falsely accused"? (Score:4, Informative)
To whoever marked me "Offtopic", perhaps I should have cited something real: Pearson v. Chung, the case of a Washington, D.C. judge, Roy Pearson, who sued a dry cleaning business for $67 million (later lowered to $54 million), has been cited[12] as an example of frivolous litigation. According to Pearson, the dry cleaners allegedly lost his pants (which he brought in for a $10.50 alteration) and refused his demands for a large refund. Pearson believed that a 'Satisfaction Guaranteed' sign in the window of the shop legally entitled him to a refund for the cost of the pants, estimated at $1,000. The $54 million total also included $2 million in "mental distress" and $15,000 which he estimated to be the cost of renting a car every weekend to go to another dry cleaners.
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I'm not so sure about that (Score:4, Insightful)
The RIAA can claim that they have a reasonable belief that they've sued are the right people.
Most of their legal paperwork is of the John Doe variety. By its very nature they are saying "we know something bad happened, but we're not sure who did it." I don't think that argument would hold much water.
They can argue a reasonable belief that they will prevail in court.
The vast majority of their legal actions are dropped in their extortion racket. "Pay us $3k and we'll go away."
If they really believed they could win in court, why offer these settlement notices up front? Especially when they claim damages far in excess of $3k? Who throws money away like that?
RICO was made for just such a circumstance (IMHO, IANAL, and so on).
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Re:I'm not so sure about that (Score:5, Insightful)
This is without a doubt a protection racket.
You mean like the RIAA telling Ohio University that if the university pays $76,000 to the RIAA's expert witness's company, the letters will stop, and then the university pays, and then the letters suddenly stop [blogspot.com]?
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Re:I'm not so sure about that (Score:4, Insightful)
I think it's a fine line. Most lawsuits are settled, and they're settled precisely because both sides hedge their bets and realize that they have a lot to lose by going into an all-out court battle. It's hard for me to accept that offering a settlement up front is inherently wrong to do.
Yeah, you make a good point there. True. Settlements do not imply an unwillingness to sue. I hadn't really thought of it in that way, and you're right.
But there is also a counter point hidden in your argument:
Furthermore, the sheer impossibility of going through with a full lawsuit for every person that the RIAA finds to be sharing files is a problem.
By your own argument, it would be impossible for the RIAA to follow through with every threat they send out. Therefore they must be filing at least a percentage of these fraudulently.
For instance, if you have ten lawyers, and a lawsuit takes about a month, then you could reasonably file 120 cases a year. If you file 200, you are possibly committing fraud. If you file 400, you are probably committing fraud.
Now, I'm not sure of their exact numbers - but I'll bet they don't have the resources to follow through with every single complaint they file. [eff.org]
I'm pretty certain they've moved into the fraud category.
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Re:I'm not so sure about that (Score:4, Insightful)
Fair points, all. The question now becomes whether or not an expected settlement is cause enough to spread your resources this thin. When I first heard about the lawsuits, my first thought was that it would be a long time before anyone fought it out, since that would be so costly. Now it turned out that people started fighting them earlier than I expected. That's pretty cool. It may have caught the RIAA off guard, too.
I suspect that you're right. I suspect that the RIAA is intentionally abusing the system. I think that their intent is probably not to go through with any lawsuits (they expect everyone to settle, after all), but that's different from a willingness to go through with it. So far, they've mostly gone through with lawsuits for people who fought. In the cases where they've dropped it, there's usually a good amount of evidence that the defendant has a case (at least, in the cases which we've heard about.)
So is intent enough to get them? I don't think that it should be, but in our system, it probably is.
Of course, we may find out. If they're found guilty of racketeering, they'll have to either go through with lawsuits or stop suing. I don't see the latter happening.
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Re:"falsely accused"? (Score:5, Insightful)
Here's the thing, though. The RIAA does have some information. They're not suing people at random--they're suing people that they believe have done something wrong. Their methods are almost certainly unsound, and their theory of what constitutes infringement is questionable. Their evidence for infringement is generally weak. And their attempts to strong-arm people into settlements is also unsettling.
However, whether this constitutes criminal behavior is also questionable. The RIAA can claim that they have a reasonable belief that they've sued are the right people. They can argue a reasonable belief that they will prevail in court. And they can claim their settlement offers are reasonable within the standards the law currently provides. The RIAA may be wrong about all these things (and probably are), but that doesn't necessarily mean what they're doing is illegal.
Not everyone who brings a lawsuit and loses is a criminal.
The problem is that when you use illegal means to gain information to then use to coerce an individual into an unfavorable settlement, else they face great financial damages executed by your behalf against them, and you do this to a great many people, that is called racketeering or extortion. Which is illegal.
What the RIAA is doing is in effect the same as a Mob boss shaking down businesses in an area for "Protection" money.
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Re:"falsely accused"? (Score:5, Informative)
What the RIAA is doing is in effect the same as a Mob boss shaking down businesses in an area for "Protection" money.
Indeed, and she [blogspot.com] agrees with that sentiment.
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Re:"falsely accused"? (Score:4, Insightful)
What the RIAA is doing is falsely accusing large numbers of people, knowing that only a small number are possibly actionable. This "drift net" technique is indeed "suing people at random" and is not allowed by any court's procedures. They then exercise ex parte discovery (i.e. without the accused being able to answer the charges in court) which is basically rounding up bunches of people and asking them to turn out their pockets on the hope that they'll catch someone.
They then drop the nonproductive suits (after costing them a packet on legal fees) focus on the remainder, bring suit to assess egregious civil damages, which is counter to the principle of the 8th Amendment, in the core document of US law. Read NYCL's article on the subject at his web site - he's the authority on their techniques.
So I have to disagree with you -- it does necessarily mean that what they're doing is illegal.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." -- Eighth Amendment to the US Constitution.
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Re:"falsely accused"? (Score:5, Informative)
That platitude only applies to criminal law. In civil cases, they just say that the plaintiff bears the burden of proving his case by a preponderance of the evidence (i.e., more likely than not). So to win a suit against the RIAA, you need to prove that it's more likely than not that you didn't pirate any music (e.g., "I don't even own a computer," or "I'm Ted Stevens") along with whatever else the particular law requires.
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Re:"falsely accused"? (Score:4, Insightful)
Yes, but the point was that the RIAA is accusing you of criminal copyright infringement. If you accuse me of being a thief, you'ld damned well better have a court record saying I was found guilty of stealing or I'll slap a slander suit on your ass so fast it'll make your head spin.
And unlike stealing or copyright infringement, slander IS a civil suit.
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Re:"falsely accused"? (Score:5, Informative)
No, because "innocent" and "guilty" don't mean anything in civil cases. Also, you have to treat "prove" as a term of art. "Prove" means something entirely different in a criminal context than in a civil context. "Innocent until proven guilty" actually means, "you are presumed to be 'not guilty' until the state has cleared all the numerous constitutional hurdles we have intentionally placed in its way to make it very hard to 'prove' that an innocent person is guilty, and then proven beyond a reasonable doubt that you are guilty of the charged crime." It means, "Jury, if you're not sure, if you still have some lingering doubts, if you think, 'He probably did it, but I can see how he could reasonably be innocent,' you must acquit the defendant." It means you are entitled to Sixth Amendment guaranteed trial by jury instead of Seventh Amendment trial by jury guaranteed if you happen to be in federal court and the judge feels like it. It means (in most cases) that a jury of twelve of your peers must vote against you unanimously. It means you are protected against self incrimination and you get the Confrontation Clause. It means your adversary is the Sovereign State, so we're going to stack the cards heavily in your favor. It means you get the benefit of the Exclusionary Rule if the state unlawfully searched you or seized things. It means you're starting out WAY ahead of your adversary, and your adversary must make up all that ground and blow way past you to win.
"Proof by a preponderance of the evidence" means everybody starts out on equal footing and the plaintiff wins if he inches a little ahead of the defendant.
So no, they're not remotely the same thing.
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Re:"falsely accused"? (Score:5, Insightful)
I'd say that NYCL has enough information there (see my sig) to show that everyone who has been accused was accused under false pretense, without evidence, or accused for what someone else had actually done. While there certainly has been file sharing, and accordingly some loss of revenue to the recording industry. Neither the amount of the loss nor the act of copyright infringement via distribution has been proven. Both are exaggerated by the RIAA legal team. The only thing they have to show is that their assignees accessed other people's computers and downloaded copyrighted works. If you ask me, that's not cricket!
The RIAA continues to show the style and grace of a skydiver with a ripped chute and no backup plan.
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Re:"falsely accused"? (Score:5, Interesting)
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Re:"falsely accused"? (Score:5, Informative)
There already many cases where this has occurred. Lindor, Anderson, Foster to name a few. However these people that actually persevered in court had to spend years and tens of thousands in legal fees to clear their name. Add to that the documented cases where the RIAA sued people who didn't have computers, dead people, etc. Most people I suspected just paid the fine instead going through the whole ordeal. While it may not be successful, the discovery process may unearth what we have long suspected: The RIAA does not adequately investigates someone before suing them, does not dismiss lawsuits when it appears that they may have erred, and will continue to abuse the legal system in this way.
Well according to this guy [blogspot.com] their investigative methods are untested, have never been accepted in the scientific community, have never been published, were not subjected to peer review, are completely secret, and ... he invented them himself, out of his own head. And according to this guy [beckermanlegal.com] the "instructions and parameters" for the investigations were given to the investigators by the lawyers.
So why wouldn't you think the RIAA's investigation is reliable, UnknowingFool?
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Re:"falsely accused"? (Score:4, Informative)
Isn't one who buys the connection responsible for their endpoint?
Not according to these guys [blogspot.com] (MGM v. Grokster).
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Re:"falsely accused"? (Score:5, Informative)
I do not believe there is any legal standing for the idea that the account holder is responsible, in any way, for the actions that take place on the connection.
And the United States Supreme Court shares your belief [blogspot.com].
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Re:"falsely accused"? (Score:5, Interesting)
2. You are a consulting practice not an investigative company.
3. It is not at all obvious why you are anonymous, since your claims are self-laudatory.
In any event, of course the term 'instructions and parameters' could be interpreted in different ways. However, if you'd read the declaration of the RIAA's Bradley Buckles you'd know that in this case it has to be interpreted in the bad way, not the good way. In the innocent way, there would have been nothing to conceal. E.g. if RIAA lawyers said "we would like you go on the internet and catch people who are downloading or distributing our copyrighted song files" -- which would have been perfectly innocent "instructions and parameters" -- there would have been no need for the secrecy that Mr. Buckles was seeking to invoke. But they didn't say that, they said something like "this is how we want you to do it", which is why they needed to keep it secret.
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Re:"falsely accused"? (Score:5, Insightful)
Copying music isn't something that really leaves fingerprints and you certainly can't get caught with the blood on the knife.
In many cases an IP can identify a household (assuming they don't have someone exploiting their WiFi), but it can NEVER identify the individual, it's impossible to get proof for that without 'breaking' into someone's computer and finding relevant material, and even that's difficult to prove hasn't been forged because it'll always be the same 1s and 0s.
This is also a civil case, unblemished authorities aren't here to collect blood samples and take pictures of the murder scene, there's no trustworthy neutral party like there normally is (or is expected to be) in a murder/theft/whatever investigation. It's Citizen VS Citizen, and the RIAA has yet to prove that it has any legal right to conduct the investigations it has.
What's worse is they're targeting colleges and dial up users, and even some DSL and cable users' IPs change often. You have to get another entity involved in these situations, so it becomes Citizen VS Innocent Mediator when the RIAA tries to get service providers involved, something that hasn't really happened much historically in anything.
It is absolutely vital people distinguish the RIAA separately from qualified agencies. The RIAA is another you and me, not an organization we voted for or was appointed into existence by those we voted for.
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Stating the Obvious (Score:5, Interesting)
Re: (Score:3, Insightful)
Re:Stating the Obvious (Score:4, Funny)
It was designed to protect people from the Music And Film Industry of America (MAFIA).
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Real life imitating slashdot.org (Score:5, Interesting)
I wonder how many times has this been pointed out that someone should roll up a RICO class action suit against RIAA?
Great that it is finally coming to life :) Real life imitating slashdot :)
Re:Real life imitating slashdot.org (Score:5, Funny)
I wonder how many times has this been pointed out that someone should roll up a RICO class action suit against RIAA?
The RIAA getting RICO-rolled... there's a youtube viral in there somewhere, I can sense it.
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Someone discovered justice in legal system?! (Score:4, Insightful)
Hi there. I'm new here.
about freaking time! been urging RICO forever. (Score:4, Informative)
these RIAA guys have been acting like burglars on crack for a long time, and now they have to defend themselves.
The Only RICO RIAA Fears is Sauve (Score:5, Informative)
Fun with IP addresses (Score:5, Interesting)
Years ago, I had a cable modem. In the beginning, all customers had static IPs. I had several lengthy outages that ultimately led to ditching cable in favor of slower but more reliable DSL. One of the more interesting problems occurred when someone else decided (or was mistakenly assigned) to use my static IP address. Obviously, I had service trouble (as I suspect the other person did as well). The ISP's solution was to assign a NEW address to ME.
The interesting part is this: On some networks, it is possible to assume a static address that you did NOT receive via DHCP and it just might work. It may or may not be subject to somebody else's DHCP lease. Even if it is, the other person's computer may be off. In my case, it all happened by accident. Maybe it's not always an accident.
Between the static address, DHCP leases, ISP bumbling on the management of either one, combined with both intentional and unintentional user mistakes about configuration, there is more than a reasonable doubt about the identity of ANYONE based on simply an IP address. And of course a MAC address can be easily faked.
A friend of mine received an RIAA nastygram sent by his cable ISP. Fortunately, this guy kept logs of his DHCP address assignments and quickly proved the ISPs records to be false. It seems the address used for the downloading was assigned to my friend AFTER the alleged downloads took place. The cable clowns never bothered to compare the date/time of the alleged activity with their logs; they just launched a nastygram to whoever had the current address. Morons.
[R][MP]IAAA are terrorists (Score:4, Interesting)
I sort of got a bit of a bad rap for a post I made yesterday calling for extreme disrespect and outright harassment against lawyers and executives involved in these law suits. Let me restate my position with a little more of my thinking so my point is a little more clear.
These organizations are performing acts of terror. They aren't using bombs, they are using the courts.
They bribe (oops, "lobby") politicians to pass outrageous laws that defy common sense.
They use the immense power and legal shielding of multi-billion dollar multi-national corporations to bully innocent people who have no hope of defending themselves. Destroying lives with no conscience what so ever.
Because of the legal liability shield of the corporation, they get to do this to people with complete impunity.
Why do we let F*&^*ckers like this do that? If a bully picks a fight with you, do you fight him on his home turf? No, you move the fight where you can better defend yourself. In our case, that's the street.
Ruin their lives, make them pay for what they do. Do you think the courts will? Do you think the politicians will?
These people are worse than any mugger. They are worse than any street thug. They walk around in expensive suits and ruin the lives of helpless people they accuse without credible evidence merely to create fear.
It isn't until it is clear that unethical behavior will not be tolerated by society and that there is a price to pay for it, will we ever regain the freedoms we have lost to corporations like this. They can buy the politicians, but they can't buy the good will of society that human beings need to survive. Reject them everywhere. Shun them. It is the *only* way we will ever rid ourselves of these parasites.
Re:While yer RICO'ing... (Score:5, Interesting)
Could I suggest a RICO against the Federal Reserve?
Bloomberg [bloomberg.com] tried suing the FED under the FOIA to disclose who it gave $2 trillion to. They claim they don't have to disclose under the FOIA because they technically aren't part of the government.
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Dear Lord.... Use a Line Return or 84.... (Score:4, Insightful)
I mean, how hard is that... really? :)
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Re:Dear Lord.... Use a Line Return or 84.... (Score:5, Funny)
Dear Lord . . . I actually understand that. I need to get out more. :)
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Re:RICO Seizures (Score:4, Funny)
Would the FBI then say "All your base are belong to U.S.?"
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Re:Litigating. (Score:5, Insightful)
This is the readability police. Step AWAY from the thesaurus.
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Re:whats really great about this (Score:5, Funny)
I'm no legal expert but ...
Don't worry. Neither are the RIAA's lawyers.
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Re:Discovery burden (Score:4, Funny)
2) Request public records of proceedings
3) ????
4) Profit!
sheer elegance in its simplicity!
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