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RICO is so often brought up in these discussions that I finally went looking to see what it would take to get a RICO indictment and eventual conviction. I'm not so sure that it applies.

Note: I got my RICO information from Wikipedia [wikipedia.org], so take it for what it's worth.

First off, RICO requires that the individual or groups commit two of 35 different crimes. Extortion is in the list, but not many of the other crimes could apply to the RIAA no matter how far we stretch them. I think even extortion is a bit of a stretch. The ones that are even worth considering are:

• Extortion
• Fraud
• Blackmail
• Obstruction of Justice
• Racketeering

I think we can ignore things like murder-for-hire, slavery, etc.

There's a fine line between extortion and blackmail. In both cases, there's a threat for gain. "Pay up or else!" In extortion, the threat is generally something illegal; for blackmail, the threat is normally something that would be legal, if it weren't being done as part of the threat for gain. Certainly, the RIAA is well within the bounds of legal behavior to bring lawsuits, and the courts are very reluctant to limit access to the courts under any circumstances.

To show extortion, one would need to demonstrate that bringing the suits is, itself, improper. That's not impossible, particularly if we can prove that the RIAA threatened litigation that it knew it couldn't win, but there are other rules for dealing with threats of frivolous lawsuits. My knowledge of that end of the law is pretty shaky — does anybody know what those rules are? Does anyone know if one can use them to demonstrate that the legal threat was, in fact, extortion?

For blackmail, one merely needs to demonstrate that the threat was used for gain. Unfortunately, once again, the courts like to encourage parties to settle. Settlement negotiations are almost impossible to characterize as blackmail.

RICO was written with obstruction of justice in mind. The idea was that organized crime would threaten witnesses, suborn testimony, etc. Some of the things that I've heard in a few RIAA cases do push this line, but I don't think they cross it. There's a big difference between trying to subpoena a minor and depose her outside the presence of her guardian, versus saying "If you testify, I'll kill your pets, your kids, and your grandparents, in alphabetical order."

Fraud only seems to apply if the letters they send out contain fraudulent offers. I'm not sure how this could apply, but it's worth examination.

Racketeering refers to a completely illegal business model - e.g., a "Protection Racket," where you pay for "insurance" against bad things happening to your business — where the bad things are the insurer actively trashing your business. If extortion applies to a large proportion of lawsuits (enough to show a clear, deliberate pattern), then racketeering probably applies as well. However, I don't think extortion could be demonstrated.

Ultimately, much as I'd personally love to see RICO applied, I don't think it does. They key point is that the courts don't like to limit access to the courts, even by a chilling effect. Everybody has a right to their day in court. That, in turn, leads to the abuses we see where a big corporation can afford more and bigger lawyers than small mom-and-pop businesses, who settle cases that they could win because they'd lose more money in legal fees than the settlement.

What we need is a revamp of this part of the legal system. Frankly, I don't see how that can be done without free, government-appointed counsel in every case, which is even less workable than the current system.