The Knoxville News Sentinel in Tennessee reports that an Army Sergeant stationed at Fort Campbell, who has been targeted by the RIAA for file sharing he did not commit, has fought back, counterclaiming against the record companies for copyright misuse, in Warner v. Paternoster:
Music industry countersued
Soldier: Record labels violated his privacy, abused copyright law
By Andrew Eder
Wednesday, July 18, 2007
Music-industry litigation tactics against suspected online music pirates face a challenge in Tennessee, with an Army sergeant arguing that record labels have engaged in a “conspiracy” to defraud courts and violate privacy rights.
The claims come in response to a lawsuit against Nicholas Paternoster of Clarksville, Tenn., 33, soldier at nearby Fort Campbell, who is accused of infringing copyrights by using the peer-to-peer file-sharing program Kazaa to distribute songs online.
In the response, Paternoster denies the allegations of copyright infringement and responds with a counterclaim charging that the record labels are abusing copyright law.
The labels, “ostensibly competitors in the recording industry, are a cartel acting together in violation of the antitrust laws and public policy,” allege Paternoster’s attorneys from the Nashville law firm Beam & Rogers.
The countersuit points out that although the recording industry singled out only six songs whose copyrights were infringed, the complaint includes screenshots of more than 4,600 files from Paternoster’s personal computer, including hundreds of apparently pornographic pictures and movies.
According to another document filed in the case, Paternoster was unaware that the Kazaa software was installed on his computer. While on a tour of duty in Germany from 2004 to 2005, the document says, another soldier downloaded the software and set up a Kazaa account under Paternoster’s name.
Last summer Paternoster discovered the software and “thousands of files downloaded on his computer by the soldiers he housed,” and he uninstalled the software and deleted the files, according to the document.
Kazaa and other file-sharing networks often make a computer’s files available for download by other network users, which allows the RIAA’s investigators to document instances of copyright infringement. The file-sharing option can be disabled, but many users never realize they are making their files available.
By including the full list of Paternoster’s files in the public record, the record labels invaded his privacy and are trying to “shame” him into accepting their demands, his attorneys argue.
“Such actions by the Counter-Defendants are a blatant misuse of their right to investigate potential copyright infringement and violate public policy,” the countersuit reads.
The attorneys list a host of other common complaints about recording industry tactics, including targeting dead, disabled and unknowledgeable people with lawsuits; relying on Internet Protocol addresses to identify defendants; making “extortionate threats” and seeking “exorbitant settlement amounts” through the RIAA; and invading defendants’ privacy by pursuing “John Doe” lawsuits and subpoenas without the individual’s knowledge.
Answer and Counterclaim
Here are some extracts from the counterclaim:
A 33-year old Army Sergeant stationed at Fort Campbell, in Tennessee, has counterclaimed against the record company palintiffs, in Warner v. Paternoster. His counterclaim seeks forfeiture of the plaintiffs' copyrights, and other relief, against Warner, BMG, Arista, Virgin,, and UMG, based on his claim (pdf) that they "are competitors in the business of recorded music...and [together with] their attorneys have engaged in a wide-ranging
conspiracy to defraud the Courts of the United States and to violate the privacy rights of Counter-
Plaintiff Paternoster.....are a cartel acting together in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among
themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers....[and] invaded the privacy of ... Sgt. Paternoster by accessing the private files on his computer via the Kazaa software which Counter-Plaintiff Paternoster did not know was installed on his computer..... under the guise of protecting their copyrighted materials, printed off hundreds of pages listing approximately 4,604 personal and private files of Counter-Plaintiff Sgt. Paternoster located on his computer ...[and] then filed these pages listing these 4,604 personal files ... in an attempt to place ... Sgt. Paternoster in an unattractive light due to the nature of the personal files....[They] included the list of these 4,604 personal files even though they only claim that Counter-Plaintiff Paternoster infringed the copyrights on six (6) song files..... By making the list of these files identified on Exhibit B to the Complaint part of the public record, Counter-Defendants seek to shame ... Sgt. Paternoster into giving in to their unreasonable demands regarding their copyrighted materials....Such actions by the Counter-Defendants are a blatant misuse of their right to investigate potential copyright infringement and violate public policy. They have impermissibly searched the private files of Counter-Plaintiff Paternoster without his consent and made a list of those potentially embarrassing files available to the public....In addition ....[they] conspired together on other activities in furtherance of their conspiracy including: (1)
bringing, without investigation sufficient to establish that the allegations and factual contention
therein have evidentiary support, lawsuits against persons who are not specifically known to have
infringed copyrights, including persons who are deceased, disabled or who lack knowledge of
how to use computers or download files from the internet; (2) making false and unsupported
allegations that the defendants in these actions, including Counter-Plaintiff Paternoster, have
infringed copyrights, by making the unwarranted and technologically erroneous assumption that
an Internet Protocol address is a unique identifier of a computer or an individual; (3) using a
corporation as their agent to make extortionate threats to take criminal action and to defame
defendants’ names and credit, in order to force defendants to pay sums which have no relation to
plaintiffs’ actual damages, if any, and by delivering releases to settling defendants (few of whom
are represented by counsel) which are fraudulent, in that they do not constitute true releases of all
claims by putative plaintiffs, thereby misleading settling defendants into erroneously believing that
they cannot be sued again; (4) jointly agreeing upon exorbitant settlement amounts which are nonnegotiable
and are arbitrarily increased at set intervals thereby depriving the defendants in these
actions of any reasonable opportunity to negotiate a settlement; (5) commencing ex parte “John Doe” lawsuits which they have no intention of pursuing, but by means of which they are able to communicate with District Judges, Magistrate Judges, and other judicial officials on a daily basis, without providing defendants with notice or opportunity to be heard, in violation of attorneys’ ethical obligations as officers of the Courts; (6) invading the privacy of these “John Doe” defendants by then serving subpoenas on Internet Service Providers without notice to the putative defendants; (7)withdrawing such actions upon being challenged and thereby preventing
defendants from obtaining relief for having to defend them; and (8) engaging in other unconscionable conduct.....[They] have commenced tens of thousands of actions in the District Courts of the United States in the past five years, the overwhelming majority of which have resulted either in default judgments or extortionate settlements far in excess of any actual damages incurred by Counter-Defendants... Such actions represent an attempt by Counter-Defendants to secure for themselves rights far exceeding those provided by copyright laws.... Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights granted to Counter-Defendants by those laws of the United States....Counter-Plaintiff is entitled to a judgment that Counter-Defendants have forfeited the exclusive rights, if any, which they possess in and to the sound recordings which they allege
Counter-Plaintiff Sgt. Paternoster infringed."
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