Lawyers question merit of record biz's lawsuits against file swappers

As legal battles go, the recording biz’s fight against illegal file swappers isn’t exactly the stuff of great drama. It’s no “Inherit the Wind.” So far, it’s not even “Judge Judy” — as not a single case has yet reached court.

Not surprisingly, lawyers representing various defendants suggest it should stay that way. They question the basic merit of the lawsuits filed by the record biz against file swappers.

And if they can make that argument before the first suits go to trial sometime in 2006, the recording biz could be sent looking for a new stick — or at least a sharper one — to shake at illegal file swappers.

To hear the Recording Industry Assn. of America tell it, its 15,500 lawsuits against illegal downloading are a slamdunk, a fait accompli blow vs. piracy. After all, 25% of those sued have settled out of court.

But defense lawyers — including New York-based Ray Beckerman and Dallas attorney John Browning, who separately represent a dozen or so defendants — question the very legitimacy of the lawsuits, some of which are leveled against unwitting parents and at least one grandfather.

“All they know is that someone on a computer located somewhere had a file-sharing folder that had copyrighted songs in it,” says Beckerman. “They don’t know if the songs were obtained illegally, and they don’t even know if the person they’re suing is the person who set up the file-sharing account. Most (defendants) did not.”

Copyright infringement cases, Beckerman says, must be pleaded “with specificity — dates, times and names.” The suits that have been filed so far have none of that, he claims.

The RIAA, however, remains confident in its investigative methods and says it’s got the right targets in its sights.

“We have a good-faith belief that all the evidence we have gathered shows that a particular person at a particular computer address has engaged in copyright infringement,” says RIAA spokesman Jonathan Lamy, who points out that before a complaint can go forward — and subpoenas issued — a federal judge must review and approve the complaint.

But the issue of identity is the gray area defense lawyers are counting on.

One attorney specializing in intellectual property law says defendants who say someone else used their computer and screen name have a viable argument.

“It’s true that if my car is in an accident, you need to do more than prove it was my car to prove that I’m liable,” says the attorney, who is not representing any of those accused by the RIAA. “Someone else could’ve been driving.”

But, he continues, the fact that it was his car could certainly be enough to justify bringing a suit against him and then using subpoena power to get additional evidence to prove liability. In other words, the RIAA could be acting entirely appropriately.

The trade org also says that if its lawsuits have no merit, then why do a quarter of defendants settle out of court?

The answer, says Beckerman, is simple.

“Litigation could cost as much as $100,000, and the RIAA is saying, ‘This will all go away if you pay us maybe $4,000,’ ” he says. “What would you do?”

“When you see grandfathers getting sued, it’s a function of an overly broad net the industry has cast,” says another IP attorney. “There’s no doubt these suits are being brought for effect, and one way to increase effect is to drag in hundreds of people in one shot. But then you’ve got to question whether enough due diligence is being done.”

That’s precisely what will be decided in the challenges being put forward by defense attorneys.

If those challenges are upheld, says another IP lawyer, “the RIAA is going to have to take another level of due diligence, in which case it becomes even harder to pursue people who conceal their identities.”

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