Monday, June 25, 2007

Tanya Andersen Sues RIAA for Malicious Prosecution in Oregon

Tanya Andersen, the disabled single mother in Oregon who had been defending herself against baseless copyright infringement allgations by the RIAA for almost two years, until the RIAA finally dropped its case against her, has filed a lawsuit for malicious prosecution, Andersen v. Atlantic. Included as defendants, in addition to the record companies, are the RIAA itself, Safenet (which owns MediaSentry), and Settlement Support Center LLC.

Complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Groklaw
p2pnet.net
Slashdot
Hard OCP
Ars Technica
Wired.com
ZDNet.be (Dutch)
Heise Online (German)
TechDirt
TechSpot
Discourse.net
Technicalities
BlogRunner
Idolator
Wired.com
The Oregonian
Info World
Blame it on Steinski
FindLaw
Slyck
Marketing VOX
vnunet.com
TechnoWireNews


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

25 comments:

StephenH said...

Go Tanya! I think these illegal investigation practices and extortion should be stopped ASAP!

Sanji Himura said...

I wouldn't be surprised that an easy six or seven figure judgement comes of this. Andersen can prove this, Foster can prove this, Santlego can prove this...

See the pattern? This has class action written all over it.

AMD FanBoi said...

Just what level of relief can one get in a suit like this one? Actual damages are lawyer's fees, and the hours of your own time spent, which ought to be worth something. The toll on your health will never be compensated. And can you require that the RIAA broadcast as widely that you're judged innocent now, as they once trumpeted the fact that you were guilty of horrible taste in music? She asks for more, but what are the chances of getting even a penny of real damages against this reckless litigation machine?

Nice to see her going directly after MediaSentry Inc. And the Settlement Support Center as well. Could be some juicy discovery performed on these defendants.

At best, MediaSentry can only say that a computer, responding to a particular IP address, uploaded a potentially infringing file to them, and them alone. And that's at best. At less than best, they can't even say if all the file came from that one computer, let alone where that computer was located, who owned it, who was operating it at the time, and if that user even knew files were available from it.

Isn't it fraud on the court when you file a suit, and a lawyer signs off on it, contending that you have the evidence to prove your case? That's touched on in Count 5: Abuse of Legal Process, but can't it come back to harm the actual lawyer in the case? Harm him or her badly in a personal sense?

Sure would be great if they could find a single person to testify that they settled with the SSC out of fear of what would happen to them otherwise as demonstrated in this case. Make the case this case was clearly used, as contended, to intimidate other targets of this driftnet litigation scheme.

Count 8: Computer Fraud and Abuse Act, seems very iffy here. If Mrs. Andersen's computer wasn't the one doing the file sharing, then it wasn't the one allegedly broken into by MediaSentry. Can't have it both ways. Of course, to defend themselves, the RIAA can contend that it wasn't her computer they were into, which would be great for the other counts.

Ditto for Count 9: Tresspass to Chattels. They were either in her computer, or they weren't. Of course, they claim in the beginning that they were. Bad move for the RIAA.

Mrs. Andersen certainly comes across as a classic "thin skull" defendant, regarding the harm to her life by this unwarranted suit. This has to be the next-to-ultimate RIAA nightmare scenario. The ultimate nightmare scenario would be to actually have sued someone high up in the music industry – or a U.S. Senator – by accident, and then need to see the suit through since dismissing it would be a clear statement of selective prosecution.

Could this lawsuit be the tipping point that makes the RIAA litigation the biggest, and most expensive, mistake any large corporation has ever made? And is her case for attorney fees stronger now that she is the Plaintiff? One can only hope.

Class action status, anyone?

Dmitry Grinberg said...

Please tell me where I can donate to this cause.

H said...

Though I wish she could somehow stop the RIAA, I bet she'll settle. Here's to hoping you get a nice six figure check.

miked said...

I have been reading the posts and legal filings here for several months now. I'm sure the general anger I feel from the RIAA's behavior is not unique to me, so it's always nice to see action against them.

But this complaint is easily the nastiest I've seen going against them. Just thinking about the documents that should come out of discovery (the "secret agreement")... whew. She seems to have some really strong claims.

I almost want her to not settle, just to dig that stuff out of the ground. But her lawyer's job is to make sure she is compensated, so whatever she gets will have to do.

Ray Beckerman said...

To make contributions:

https://www.fsf.org/associate/support_freedom/dbd_donate

StephenH said...

Count 8: Computer Fraud and Abuse Act, seems very iffy here. If Mrs. Andersen's computer wasn't the one doing the file sharing, then it wasn't the one allegedly broken into by MediaSentry. Can't have it both ways. Of course, to defend themselves, the RIAA can contend that it wasn't her computer they were into, which would be great for the other counts.


True, but I think that if they did hack in to a machine and misidentify it as hers, that they are guilty of violating the CFAA. Same with count 9. Additionally, giving false information to the court that was obtained by automated hacking sytems also violates CFAA.

Schwammo said...

Have any of these or similiar counterclaims against the RIAA and its associates ever been heard by a jury?

Ray Beckerman said...

Schwammo said...

Have any of these or similiar counterclaims against the RIAA and its associates ever been heard by a jury?


Nope.

Ray Beckerman said...

Can someone tell me what the language is on zdnet.be? Is that Flemish?

Matthew said...

I would like to wish Tanya Andersen and her lawyer(s) godspeed and good hunting.

Matthew said...

"Can someone tell me what the language is on zdnet.be? Is that Flemish?"

The page is in Dutch.

pepper said...

Can someone tell me what the language is on zdnet.be? Is that Flemish?

I believe it is Dutch....

Ray Beckerman said...

Thanks for the info on zdnet.be

Michael Hoffman said...

Flemish is a dialect of Dutch.

Russell said...

Schwammo said...

Have any of these or similiar counterclaims against the RIAA and its associates ever been heard by a jury?
Ray replied ...
Nope.


I will go and ask the next level, have any of the RIAA cases yet been heard by a jury?

Nick said...

https://www.fsf.org/associate/support_freedom/dbd_donate

^^^
Don't use that link to donate to this cause. That link is for the legal defense of cases made by RIAA and has nothing to do with this particular case. Still a worthy cause, so donate if you want - just don't do so thinking you're donating to this woman.

I'm seconding the request for information on donating to this woman.

Ray Beckerman said...

Russell said...

Schwammo said...

Have any of these or similiar counterclaims against the RIAA and its associates ever been heard by a jury?
Ray replied ...
Nope.

I will go and ask the next level, have any of the RIAA cases yet been heard by a jury?


Not that I'm aware of.

Which is not to say that there have not been any; but I am not aware of any.

Ray Beckerman said...

Ray Beckerman said...

Nick said...

https://www.fsf.org/associate/support_freedom/dbd_donate

^^^
Don't use that link to donate to this cause. That link is for the legal defense of cases made by RIAA and has nothing to do with this particular case. Still a worthy cause, so donate if you want - just don't do so thinking you're donating to this woman.

I'm seconding the request for information on donating to this woman.


I'm sure if you earmark it for the Andersen case they'll send it to the Andersen case.

If you don't care about the tax deductibility of it, you could just send the contribution to Ms. Andersen's lawyers to apply to the case.

Here's the mailing address:

Lory R. Lybeck, Esq.
Lybeck Murphy, LLP
500 Island Corporate Center
7525 SE 24 Street
Mercer Island, WA 98040-2336

Severine said...

If MediaSentry admit that they did not hack into her computer to save themselves from a criminal computer privacy charge, then that negates any and all cases where they said they identified a certain person by observing them in action. As another poster said, you can't have it both ways and in the case of MediaSentry, they are damned either way.

The RICO charge was long awaited and every single pleading the RIAA and MPAA have filed set up the RICO evidence. In concert with MediaSentry and the Settlement Center they have obviously created an environment to extort money from innocent people using bully tactics. This is clearly done with the permission and knowledge of the RIAA. If the RICO charge sticks, this makes them all Organized Crime. You would figure they could hire smarter attorneys.

I think getting the malicious prosecution charge to stick will be the most likely based on their actions. I think that the RIAA, MediaSentry and the Settlement Center will try to settle, but I think they pissed off the wrong mom. She knows that if she backs down, then their tactics win and will continue on. I applaud her courage.

Sanji Himura said...

Severine said...

If MediaSentry admit that they did not hack into her computer to save themselves from a criminal computer privacy charge, then that negates any and all cases where they said they identified a certain person by observing them in action. As another poster said, you can't have it both ways and in the case of MediaSentry, they are damned either way.


Knowing my record in the legal realm, I’m just going to quote from the Electronic Frontier Foundation in response to any doubts to count 8. This is from their p2p typical defense document

EFF said…

Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act (CFAA), a criminal statute, provides a civil
remedy to “any person who suffers damage or loss by reason of a violation of this
section.” Provisions of the CFAA potentially applicable to counterclaims in the context
of peer-to-peer filesharing cases prohibit: (1) accessing a computer without authorization
or exceeding authorized access to obtain “information from any protected computer if the
conduct involved an interstate or foreign communication;” (2) intentionally accessing a
protected computer without authorization, and as a result of such conduct, causing
damage; (3) “knowingly and with intent to defraud, access[ing] a protected computer without authorization, or exceed[ing] authorized access, and by means of such conduct
furthering the intended fraud and obtain[ing] anything of value, unless the object of the
fraud and the thing obtained consists only of the use of the computer and the value of
such use is not more than $ 5,000 in any one-year period.”

A civil action for a violation of the CFAA may be brought only if the conduct
involves one of the factors set forth in subsection (a)(5)(B): “(i) loss to one or more
persons during any one-year period . . . aggregating at least $ 5,000 in value; (ii) the
modification or impairment, or potential modification or impairment, of the medical
examination, diagnosis, treatment, or care of one or more individuals; (iii) physical injury
to any person; (iv) a threat to public health or safety; or (v) damage affecting a computer
system used by or for a government entity in furtherance of the administration of justice,
national defense, or national security.”

The statute of limitations for civil actions under the Act is two years from the date
of the act complained of or the date of the discovery of the damage.

H_in_ForestGrove said...

That's sick! Good for Tanya! I feel less & less inclined to buy music because of the Music Industry's bully-boy extortions. They won't even try to get proof. If Tanya is as non-techy as she says she is, then it'd be super easy to prove whether there's music, erased music or never been music on her machine.
I'll stick to the radio, Internet radio, & buying used CD's.

Luigi said...

This is great! I wish to donate to this woman's cause because she's doing it for all of us. The RIAA is pulling protection rackets just like the mafia from the 30's and 40's.

Daniel said...

I get a warm feeling inside every time I hear the phrase "filed counterclaims against the RIAA". Give those bastards what they deserve.