Music org's stern policy in jeopardy

A lawsuit recently filed against the Recording Industry Assn. of America could ultimately force the org to drop or dramatically change the way it uses its principal weapon in the fight against online piracy, according to experts and observers.

The case — filed in Oregon and asserting claims under the Computer Fraud and Abuse Act and the Racketeer Influenced and Corrupt Organization Act — details the RIAA’s alleged use of “illegal and flawed” methods when investigating people for downloading or swapping copyrighted songs without paying for them.

The plaintiff in the case, disabled single mother Tanya Andersen, claims the RIAA was aware of the faulty methods but has nonetheless filed lawsuits against innocent people in some cases.

Andersen claims she is not the only victim of such tactics and is therefore seeking class-action status for her suit. If the court grants that status, the RIAA could be facing a losing proposition because class-action suits can be extremely risky for defendants, in this case creating the potential for a big payout by the music labels.

“If class action is certified, it’s more likely that the record companies would settle,” said Ronnie London, an attorney versed in class-action law with the firm of Davis Wright Tremaine, which specializes in communications law.

Settlement could also lead to less aggressive legal tactics in pursuit of online pirates.

The recording industry’s willingness to settle is far from guaranteed, however, given the nuanced variables of class-action suits and the RIAA’s contention that the Oregon suit is meritless and thus should be dismissed — an argument the org plans to make in a brief it will file with the court in the coming weeks.

According to Andersen’s complaint filed with the U.S. District Court in Portland, “For years, the RIAA and its member companies have been using flawed and illegal private investigation information as part of their coordinated scheme and common enterprise to threaten, intimidate and coerce payment from private citizens across the United States. As such they have clogged and abused the federal courts for many years with factually baseless and fraudulent lawsuits.”

In 2005, Oregon resident Andersen received notice that the recording industry was suing her, claiming it had proof she had illegally downloaded and shared almost 1,300 files of copyrighted music. The notice strongly suggested that she agree to a settlement of $4,000-$5,000 or face prohibitively expensive litigation.

Andersen said she had done no such thing and hired a lawyer to countersue. As the discovery phase proceeded, Andersen’s lawyer eventually claimed:

  • MediaSentry, the investigative firm contracted by the RIAA to identify illegal downloaders, is not licensed for such investigations.

  • MediaSentry and the RIAA have known “for years” that the investigative methods are flawed and sometimes result in cases of mistaken identity.

  • An agent from the settlement company told Andersen that he doubted she was guilty, but the record labels “would not quit their attempts to force payment from her because to do so would encourage other people to defend themselves.”

  • The RIAA repeatedly refused to accept Andersen’s offer that their representatives come inspect her computer’s hard drive until a court ordered the inspection — which showed the computer had not been used for any infringement.

  • Persisting, the RIAA began to harass Andersen’s 10-year-old daughter, demanding a deposition from her and even posing as a relative when calling her school to get access to her.

  • The RIAA finally dropped its case only after a court ordered it to produce evidence of infringement, which the org never did.

“Tanya Andersen is not alone,” said Lory Lybeck, her attorney. “Her story is emblematic of the abuse this process has at its core.” Lybeck added that, since filing for class-action status, he’s been contacted “by a number of other people who are in a similar position” and is “confident” that status will be granted.

The significance of class-action status “would be huge,” said Ray Beckerman, an attorney who has represented defendants in illegal downloading lawsuits filed by the RIAA. “The RIAA’s whole gambit has been economic imbalance: four huge multinational corporations join forces in an even larger cartel and sue Mom and Pop. Class actions are economic equalizers, anathema to the RIAA. If there’s a class action, the court could issue a preliminary injunction that would stop the RIAA’s unlawful practices,” Beckerman added. “If class action is certified, there would probably be at least a behavioral change on the part of the record companies. They’ll be more circumspect about which defendants they actually pick and may be more amenable to settling for less money,” London predicted.

Defendants can seek dismissal of the case even before the court rules on class action status, and the RIAA intends to do this. Failing that, defendants can also dispute the merits of the application for class action.

Once class-action status is granted, the key is usually whether the plaintiffs are likely to prove they have been harmed as a direct result of wrongful actions by the defendant, but Heidi Li Feldman, a professor at Georgetown U. Law Center, said that even then, a settlement offer isn’t assured.

Gaining class-action certification is anything but easy. “The courts say classes must be certified narrowly,” Feldman continued. “That means there must be serious overlap in both the facts of each case and the laws that are applicable to all members of the class.”

A court decision on certification can take upward of a year.

“We are confident that (Andersen’s) claims have no merit,” an RIAA spokeswoman said. “We look forward to presenting our arguments in the next few weeks to the court about why this case should be dismissed. In all our cases, we seek to follow the facts and be fair and reasonable in resolving pending claims.”

Since September 2003, the RIAA has filed more than 21,000 illegal downloading suits.

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