Sunday, June 28, 2009

Oppenheim claims RIAA has pursued total of 18,000 defendants, of whom 4,000 settled

According to court papers filed by the RIAA in Andersen v. Atlantic Recording, in opposition to plaintiff's motion for class action certification, Matthew Oppenheim has claimed that in the entire course of the RIAA's campaign, they have "contacted" a total of 18,000 people, of whom 4,000 have settled.

Oppenheim declaration
Coggon declaration
Plaintiffs' memorandum of law in opposition to class certification

[Ed. note. I'm pretty sure I saw an RIAA press release about 4 years ago which said that the number sued as of that time was around 25,000. -R.B.]

Commentary & discussion:
Digital Music News
Ars Technica

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Anonymous said...

I only hope that the opposing attorney in this case has proof that there were definitely more than 18,000 cases.

I would really love to see some egg on these jerks faces.

Anonymous said...

Are the "John Doe" suits not being counted?

Anonymous said...

How about a class of those who were shut out of ex parte hearings, sued under defective theories of law, buttressed by inadmissible declarations and illegally gathered evidence, illegally joined into cases, threatened with unconstitutionally huge statutory damages, vexatiously litigated against with onerous discovery demands to run up Defendant legal fees before cases are suddenly dropped, and extorted to become private investigators by Plaintiffs and their agents who have lied (identified an individual; the evidence necessary to prevail has already been secured) to these Defendants throughout every step of the process.

Would that define this class broadly enough?

{The Common Man Speaking}

Jadeic said...

I suspect this is another fine example of the RIAA's creative counting akin to classifying every album shipped as an album sold. No other industry in the world is allowed to declare so little verifiable information in its filed accounts than the music business.


Jadeic said...

Now we are moving into my territory.

"The information provided below regarding the individuals contacted during the Enforcement Program, and the ways Ìn which their cases were resolved, are calculations based upon my review of our case management database. Because this database was not designed to calculate the number of cases that were resolved at a particular stage or in a particular manner, there may be slight deviations below from the actual numbers."

Golly, I hope that the database designer was well paid for delivering a 'Case Management System' that could not even 'calculate the number of cases that were resolved at a particular stage or in a particular manner': fairly empirical data for such a design I would have thought as any assessment of the financial impact of their strategy would likely rely on such data. I suspect, if it exists at all, that is more likely to be a quickly knocked up Excel spreadsheet. Perhaps something to be followed up in discovery if we ever get that far. On second thoughts this could turn out to be some proprietary MediaSentry-type blackbox software that no-one is allowed access to. Sorry, no, if that were the case it would be similarly (despite evidence to the contrary) infallible with a zero error rate which seems not to be the case here. Here we are dealing with elastic figures which will stretch at will to suit the circumstances: smaller if you stand to be hauled up in court, larger if you want to intimidate.


Anonymous said...


It's even worse than that. The record industry considers every track copied a CD SALE lost. Of course, when one considers how many CD's only had at best one track worth listening to...

{The Common Man Speaking}

Alter_Fritz said...

I hate to say it, I strongly do, but I must note that the argument regarding the wording of the proposed class sounds like a really really good and logic argument.
Indeed, if the proposed class is described as persons who did not infringed the MAFIAA's copyrights, then only those that who gained an adjudication on the merits in their favor would qualify. (At least that's my undertanding of the logic. I have no deeper understanding of american law requirements regarding class action s.)

Serious Question!
Assumed the argument from the MAFIAA is not only purely logic but makes sense from an applicable law perspective; Can Plaintiff change her proposed definition of the proposed class simply and validly into something like "all those persons who were accused by Defendants of having infringed copyrights, but who have not been found liable and/or not not liable [i.e. they have not seen a judge at all since defendants have not pursuit their infringement claim against them] for copyrightinfringement by a court of law with the exclusion of default and/or summary judgements"?

With such a wording, there would be only 1 (one) person that would not qualify out of the claimed ~18000 cases and therefor putative class members if I remember correctly how many "real and not per default" court of law judgements there were [Jammie Thomas-Rasset case]

Alter_Fritz said...

[Ed. note. I'm pretty sure I saw an RIAA press release about 4 years ago which said that the number sued as of that time was around 25,000. -R.B.]

Well Ray, it is not that Mad J. Oppenheim claimed that this is NOT the case, he simply claimed the 18k thingy is only based on his review, he did not claim that the numbers are based on what the MAFIAA actually did!
So if there is such a big discrepancy in the numbers it either means he is a real bad incompetent reviewer not able to do reviews that produce factual correct numbers, or the database he reviewed is a worthless, outdated and/or simply false one!

Both possibilities would not be too surprising for a outdated industry organisation like they are, and/or a "strange" figure that he is, would it?

Jadeic said...

The Big Op may well be playing fast and loose with these figures in an attempt to play down the case for class action certification but now that we know that a 'case management database' exists then it should become a legitimate discovery request to have access to this data. One possible explanation for the perceived discrepancy between the figures could be (and surely we have a right to know) that the larger figure includes all the Doe cases whereas the lower figure now quoted is the actual result of the ex parte discovery requests and represents the number of Doe that could be identified from the IP addresses - giving a lie to the zero failure rate of the MediaSentry gizmo. Just a thought.

Eric said...

"Q: Has the RIAA stopped filing lawsuits against individuals?

In light of new opportunities to deter copyright infringement, the record industry was able to discontinue its broad-based end user litigation program. The step was made possible, in large part, by continued work with the Attorney General of New York and leading Internet Service Providers (ISPs) on a series of voluntary online anti-piracy initiatives. On a parallel track, we have been able to reach a separate agreement in principle with several leading ISPs on a graduated response program for repeat offenders when they are caught engaging in illegal activity online."

You see, there not suing anyone, so no reason to have a class action lawsuit against them ;-).

Virtualchoirboy said...

I think this is an issue of semantics again (as always). I suspect the 18,000 "contacted" is probably a count of the number of people the settlement center managed to have direct communication with. This number likely excludes:

- IP addresses that could not be resolved to a single account holder
- People that they decided not to pursue (e.g. friends, family, judges, etc.)
- People who never answered the phone calls or letters sent

and finally, the likely biggest group

- People that the settlement center just hasn't had time to contact yet.

If you look at it as a count of JUST the people that they've talked to directly, the number makes a little more sense.

Just my thoughts and worth what you paid for them... :-)

Anonymous #5 said...

In the Coggon declaration, number 90 to 93. Did they get 3 default judgments for the same claim?

Jadeic said...

li⋅to⋅tes [lahy-toh-teez]-n.

A small, somewhat insignificant, fruit whose understated appearance often evokes unwarranted attention in some quarters. Invariably the opposite reaction is more appropriate as in the expression "My, it looks good enough to eat" when in truth it is rotten to the core.

[The Real InterActive Archive is a dictionary project in progress]


Anonymous said...


we have been able to reach a separate agreement in principle with several leading ISPs on a graduated response program for repeat offenders when they are caught engaging in illegal activity online

end quote from Eric
June 29, 2009 7:32:00 AM EDT (above)

But see



At the risk of inciting a flame war or other violation of blog rules, I respectfully put it to you that RIAA are incapable
of stating the bald truth.

-Quiet Lurker

Eric said...


The ;-) is usually an indication of humor. The fact that they are intentionally misstating facts is another example of how low they will go. Of course in their Appellate brief they claimed that the RIAA was not a party to ANY of the lawsuits ( factually, true, but misleading as hell ).

I have yet to see a motion out of the RIAA's side that was not riddled with outright lies and/or half truths. I won't even get started on the fabricated evidence for trial "zero error rate".

As for this "Declaration".

1) Why say over 18,000 rather than 18,200 as the breakdown adds up to that value. If he is being imprecise then this is hardly a valid declaration. In fact, because these are nice round numbers anyone should question their validity.

2) The 600 were sent PNL's after the RIAA found out the real identity as opposed to the IP owner giving them a direct failure rate of at least 3.2%. Let's also presume that the other 5000 cases were flawed in some way as well, that's a mis-identification rate of 30%.

3) Item 12 is an example of the ineptitude and half truths here. Any of those 4000 cases the person could have chosen to settle because of the extortion campaign rather than out of guilt and he must know that. ( getting back to #2 ) Using the failure rate they have admitted that's over 1300 people who paid between 3-5k to "settle" these cases that were probably flawed in some way. 5k * 1300 = 6.5 million dollars extorted from people.

4) In the end they have won one jury verdict and extorted over 13,000 persons with dubious legal claims.