In a new Tampa, Florida, case, UMG v. Del Cid, the defendant has filed the following five (5) counterclaims against the RIAA, under Florida, federal, and California law:
1. Trespass
2. Computer Fraud and Abuse (18 USC 1030)
3. Deceptive and Unfair Trade Practices (Fla. Stat. 501.201)
4. Civil Extortion (CA Penal Code 519 & 523)
5. Civil Conspiracy involving (a) use of private investigators without license in violation of Fla. Stat. Chapter 493; (b) unauthorized access to a protected computer system, in interstate commerce, for the purpose of obtaining information in violation of 18 U.S.C. § 1030 (a)(2)(C); (c) extortion in violation of Ca. Penal Code §§ 519 and 523; and (d) knowingly collecting an unlawful consumer debt, and using abus[ive] means to do so, in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a et seq. and Fla. Stat. § 559.72 et seq.
Answer and Counterclaims*
Ms. Del Cid is represented by Michael Wasylik of Ricardo & Wasylik, in Tampa, Florida.
* Document published online at Internet Law & Regulation
Commentary & discussion:
p2pnet.net
boing boing
The Consumerist
Ars Technica
Tech Spot
Hard OCP
gizmodo
Slashdot
Download Squad
Tampa Tribune
New Music Strategies (Email exchange concerning threats by RIAA official concerning a report on Download Squad's coverage of this story)
p2pnet.net (Article about RIAA threats against New Music Strategies author for publishing link to Download Squad's coverage)
Download Squad Response to Birch
Digg.com story on Download Squad response
TMCNet
Phoenix Labs
Slashdot It!
Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
13 comments:
Looks like another case of using a national strategy that may fall afoul of specific state protections.
I am surprised, based on Defendant's affirmative defense #14, that these suits don't include some Does since they are more of a pressure strategy to get the sued Defendant to turn on someone else and give enough evidence to actually make a case in court, than go to court successfully with what they already have. I can also see, however, how such a strategy could greatly weaken Plaintiff's case. Kind of a rock and hard place there.
I note that there have been cases (Belgium newspapers against Google News) that just because something was accidentally, or even intentionally, made available on the Internet, that doesn't automatically give you the right to take it and use it in ways not intended by the Internet publisher. The illegal invasion of the personal computer in these cases has a similar ring to it. I'm certain that no one has ever authorized the RIAA, or its authorized agents, to ever read any information off of their hard drives, regardless of how that information came to be exposed to the Internet.
One thing I would argue differently is #13 on Page 6. Do Plaintiff's know that it was actually Defendant's computer they invaded? Or only that it was a computer that replied to the IP address identified? This case seems to argue that yes, they found the right computer, but had no right to do with it what they did, which is an interesting legal approach IMHO. We'll have to see if it works for them. Love to see Plaintiff's actually get nailed under the Computer Fraud and Abuse Act, however.
I remain amazed that no one has ever seemed to raise the question of the Settlement Support Center recording all of their conversations with those they attempt to extort settlements from (which I expect they most certain do), and a subpoena of the contents of those recordings. They would need such recordings to protect (CYA) themselves from claims that the acted illegally in these matters, and most likely would prove very embarrassing to actually have released into the public record.
Also, that no one has yet seemed to identify or depose any employee of said Settlement Support Center.
Where can I send a donation?
If I recall, there are a few cases where the settlement support center is listed in the requested items for discovery but I believe those cases have discover stayed at the moment.
When I first got involved with the issues about the RIAA, over at boycott-riaa.com, I said that it appeared to me the RIAA and its agents were guilty of extortion and criminal trespass. It is great to see that someone has finally put this in an actual lawsuit.
I used to reference the Hobbs Act standard as deciding if it were extortion or not.
~Code
The extortion aspect is very similiar to what DirecTV did over the last couple of years. As those cases were winding down, it was becoming evident that judges were finally starting to catch on to the underhanded tactics that DirecTV had been using. In those cases they caught on far to late though.
It will be interesting to see if it takes as long this time around, and if the judges will be as tolerant. I certainly hope not.
Racketeering charges here we come ... go bless these guys.
Well drafted reply on behalf of Ms. El Cid.
Florida has its own RICO Act, Chapter 895 of the state statutes. This may be applicable if a crime (by RIAA) can be proven.
Florida RICO Act:
http://tinyurl.com/2tlr9a
The most amazing thing is that they have not been counter-sued for invasion of privacy!
Here in the US, our actual privacy laws extend only to financial and medical privacy.
Any other invasions of privacy have to be dealt with through civil action.
What the RIAA has gotten away with is a pretty blatant invasion of privacy, and it is well past time when they should have been sued for it!
Has there been much focus on challenging the technical validity of the RIAA's screen shots and claims of having generated them while connected to a specific IP address? In other words has anyone seriously challenged the technical creds of the RIAA's initial information collection methodology?
A nefarious minded person could very easily fake even a full packet capture log of such a session between any two arbitrary IP addresses. In fact, it'd be trivial.
Seemingly, the RIAA should not be able to firmly establish that it was indeed connected to the defendant's computer without a very invasive survey of that computer during its initial investigative activities. An adequate survey (perhaps collecting the Microsoft Windows ID, MAC addresses, etc.) would far exceed the scope and functionality of any p2p file sharing program.
For all intents and purposes a screen shot is about as valid/legit as a 3yo's crayon drawing.
Yeah really, lets set up donations. I'll help fund the destruction of the RIAA's ridiculous attacks against people.
Though a poor disabled retired military veteran, living on less than $12,500 yearly, I might be able to donate $20 to help end the illegal, unconstitutional, Anti-American Extortion and illegal trespass conducted by the RIAA.
Time for a RICO case against the RIAA.
Not sure about the terminology, was it "thin skulled"?
Some boardmember from the international/british counterpart of RIAA identified as "Paul Birch of Revolver Records" is a bit pissed about blogs and all those stuff;
His email conversation ended with
"Andrew
It expresses opinion, it’s not factual. If you persist then I shall make a formal complaint to the University.
Your choice.
Paul"
Interestingly this "Revolver-Man" acknowledges that it IS the RIAA that sues people (If this guy I know nothing about is really capable to speak for them of course?!)
whole conversation here found via torrentfreak
The most telling point for me, Fritz ...
"It might not be nice to be sued by the RIAA and potentially put in a position of being made bankrupt; "
Basically, If you continue to defy us, we will bankrupt you. It's exactly what they are doing with the file sharing suits.
Using the 'law' as a lead pipe to
break their 'virtual' kneecaps.
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