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Recording Industry vs the People
Music piracy defendants fighting back --The National Law Journal
By Tresa Baldas
Staff reporter
October 10, 2005
When attorney John Hermann took on his first music piracy lawsuit recently on behalf of a woman who was being sued by the music industry, he was skeptical.
"I thought I was the only one stupid enough to take on one of these cases," he recalled.
He was wrong.
In the last year-particularly in the last six months-a growing number of defendants have refused to settle music industry suits, challenging what they allege are groundless lawsuits filed by the Recording Industry Association of America.
In the last two years, the RIAA has filed 14,800 lawsuits against individuals for illegally downloading and distributing copyrighted music on the Internet.
While the RIAA holds that most suits settle, attorneys note that many defendants have started fighting back.
In New York, a single mother of five has hired a lawyer to fight her copyright infringement suit, claiming a kid's friend may have downloaded copyrighted material without her knowledge.
In Seattle, another parent is challenging the RIAA, adamantly denying any illegal downloading. In Oregon, a defendant with an 8-year-old daughter is fighting claims that she downloaded "gangster rap" music at 4:30 a.m.
And in Michigan, three other RIAA lawsuits are facing opposition, including a case against a 14-year-old girl, and another action against the owners of a daycare center. "The cases are just starting to trickle through the court system and as a result we're starting to see objections," said Hermann, a solo in Berkley, Mich., who is handling the Michigan lawsuits.
Hermann and other defense attorneys allege that the RIAA is using "scare tactics" to force settlements, intimidating defendants into paying up before they can seek legal help, or dispute the charges. So far, about 3,400 of the RIAA suits have reached settlement.
Billions lost worldwide
But RIAA officials deny using any strong-armed tactics, saying they give defendants every chance to settle rather than litigate.
And as for those who claim they didn't download any music, the RIAA says that if defendants got a letter in the mail saying they or someone in their house illegally downloaded music, chances are it is true.
"The chances of it not being the right person or someone in that household are slim," said Stanley Pierre-Louis, senior vice president for legal affairs at the RIAA. "Let's face it, what we're doing is on the right side here. What these users are doing is violating the copyright laws."
Pierre-Louis defended the RIAA's litigation campaign, saying piracy continues to be a big threat to the music industry, which loses $4.2 billion a year to worldwide piracy, according to the group.
He said the lawsuits aim to drive home the message that piracy hurts the industry, that it will not be tolerated, and that there's a price to pay if you do it. In most cases, that price is about $4,000 to $5,000, which is what most suits settle for, he said.
"I think we're doing our best to resolve these cases as amicably as possible," Pierre-Louis said.
As for those who are fighting back, he said: "Obviously, we have no choice but to continue with litigation," adding, "There's an easy David versus Goliath story that people are trying to build, but in truth our industry is suffering immensely due to piracy."
But New York attorney Ray Beckerman, whose New York firm Beldock Levine & Hoffman has set up a Web site seeking defendants who feel they have been wrongly sued by the RIAA, believes that the music industry has gone too far in its fight against piracy.
"In my entire copyright career, I've never seen anything like this," Beckerman said. "They're taking people, many of whom have no money, and extorting like $3,700 . . . .And when they negotiate a settlement, they refuse to negotiate. They give you a number. It's hard and fast-take it or leave it."
Beckerman is currently handling three RIAA lawsuits, including the case of Patricia Santangelo, a New York resident with five children who is taking the RIAA to trial, claiming that the file-sharing program on her computer was not used by her or her family, but by one of her children's friends. Elektra v. Santangelo, No. 05 Civ. 2414 (CM) (S.D.N.Y.).
Attorney Christopher Jensen of New York's Cowan, Liebowitz & Latman, who is representing the music industry in the Santangelo suit, declined to comment.
Beckerman said the Santangelo case is a classic example of the types of suits he is seeing.
"We're getting a phone call a day from people who are being subpoenaed or sued, and people are completely perplexed. Some people don't even have computers that are getting caught up in this," said Beckerman, who has helped defendants settle about a half-dozen suits.
Attorney Lory Lybeck of Lybeck Murphy in Mercer Island, Wash., has similar stories. He is defending two people in music piracy lawsuits, including Tanya Andersen of Oregon, a severely disabled mother of an 8-year-old girl who is accused of downloading music in the middle of the night and owing hundreds of thousands of dollars. Atlantic Recording Corp. v. Andersen, No. CV 05-933 AS (D. Ore.).
The second case involves Dawnell Leadbetter, a Seattle resident who got notice that she was being sued in Philadelphia for allegedly downloading 1,200 songs and potentially owing between $750 and $150,000 as a result. Interscope Records v. Leadbetter, No. COS-1149 (RSL) (W.D. Wash.).
Lybeck said the RIAA's notification tactics have baffled many defendants. He explained that the actions first start out as John Doe suits, where the music industry subpoenas Internet service providers, asking them to identify to whom nine-digit computer codes belong. When an Internet service provider releases the names, the individuals are then summoned with notices that they are being sued.
In his clients' cases, Lybeck said the plaintiffs got the wrong people.
"There are all sorts of mistakes that are made when you file tens of thousands of lawsuits and when you invade the privacy of millions of people," said Lybeck. He has filed a counterclaim against the music industry on Andersen's behalf, alleging, among other things, abuse of legal process, invasion of privacy and electronic trespassing.
Lybeck noted that he is suing for damages to ensure that, if he wins, the music industry has to pay his legal fees.
In the Leadbetter case, Lybeck is challenging the music industry's collection efforts by suing the Seattle-based Settlement Support Center, the collection agency for the RIAA.
Attorney Christian Oldham of Lane Powell in Seattle, lawyer for the music companies in the Leadbetter case, declined to comment.
Attorney Bill Patton of Lane Powell, who is representing the music companies in the Andersen litigation, also declined to comment.
Suits have merit?
While the RIAA's lawsuits are unsettling to many, they do have merit, notes Professor Sharon Sandeen, who teaches intellectual property law at the Hamline University School of Law in St. Paul, Minn.
"There's no question that copyrightable content has been copied," said Sandeen, who defended the merits of the RIAA suits. "The strongest copyright case is when there is a verbatim copying of something that is protectible. You take something that's protectible by copyright and you copy it from beginning to end, word for word, note for note, that's the strongest case.
"I don't fault them for doing what they're doing, but at the same time I understand why people are upset about it," said Shaheen, who cautioned the music industry against pursuing the suits strictly for money.
Instead, she said, the suits should focus on educating the public about copyright laws and how they promote and protect the arts. "If they make it about getting money they're going to subject themselves to even more criticism and ridicule than they're currently getting," Sandeen said.
Meanwhile, in Michigan, another legal controversy involving RIAA lawsuits is ensuing: Should parents be held accountable for their children's actions? Moreover, should the RIAA be suing kids?
That issue is being raised in three music piracy lawsuits where children have been the alleged violators.
One involves the case of Candy Chan, whose 14-year-old daughter was sued last week for downloading and exchanging music files. The RIAA initially went after Chan, but when Chan said she did not know anything about downloading, and that her daughter had a computer that she and her friends used, they went after her daughter. Priority Records v. B.C., No 04-CV-73645 (E.D. Mich.).
There's also the case of John Harless, the father of two teenagers-16 and 14-who claims he knows nothing about computers but has been named in an RIAA copyright infringement lawsuit.
Harless' attorney, Hermann, said he's still waiting for the RIAA to produce evidence linking Harless to the claim. Elecktra Entertainment v. Harless, No. 04-CV-74502 (E.D. Mich.).
There's also the case of Angela and John Nelson, the owners of an at-home day care who are disputing claims that they downloaded any music on their home computer.
They claim it was a teenage employee. The RIAA is trying to prove that the Nelsons knew about it. Motown Record Co. v. James and Angela Nelson, No. 04-73646 (E.D. Mich.).
Hermann, who is handling all three cases, believes that the RIAA is fighting an uphill battle. "In order to hold someone liable [for copyright infringement] you have to show that someone actively participated in the infringing activity," he said.
"Now the parent probably doesn't know about it, but lo and behold they're on the hook for tens of thousands of dollars. Unless the recording industry can show that the parent was aware of what the child was doing, I don't see that they have a viable claim."
Attorney Matthew Krichbaum of Soble Rowe Krichbaum in Ann Arbor, Mich., who is representing the RIAA in all three Michigan suits, declined to comment.
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