Record industry warns of new lawsuits

By John Borland
CNET News.com
October 17, 2003, 11:12 AM PT


The Recording Industry Association of America has begun preparing a second round of file-swapping lawsuits, notifying 204 individuals that they are in line to be sued for copyright infringement.

Unlike with the previous wave of suits, the record labels' trade association is giving the lawsuit targets warning this time around, offering them a chance to settle before the suits are filed. The change in tactics comes after considerable criticism from federal lawmakers and others concerning the group's first batch of court actions against 261 individuals last month.

"We take the concerns expressed by policy makers and others very seriously," RIAA President Cary Sherman said in a statement. "In light of the comments we have heard, we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action."




The advance notification preceding this second wave of suits marks only a small concession to critics of the RIAA actions, which have been the most controversial tactics taken by copyright holders in years of fighting piracy online.

The first round of suits, launched early in September, targeted 261 individuals whom the RIAA said had been identified as the most "egregious" file swappers, often offering more than 1,000 songs for download over peer-to-peer services such as Kazaa and Morpheus.

But as the identities of those individuals hit the press, criticism arose. The case of a 12-year-old girl living in New York public housing quickly became emblematic of what critics called the RIAA's excessive enforcement action. A 60-something Boston woman, accused of offering hardcore rap songs for download through the Kazaa service, was dropped from the lawsuit lists after it emerged she actually used a Macintosh computer, which did not support Kazaa.

A Los Angeles area man is also challenging his lawsuit, saying that the RIAA's suit identifies him as using an Internet address that was not his, and that he can prove it.

In congressional hearings last week, RIAA executives promised they would begin sending letters to potential targets of lawsuits in advance of the actual filings, allowing those who wish to settle early to do so, and giving people who believe they were misidentified a chance to make their concerns known.

The letters, sent out in two batches Monday and Friday, are primarily focused on settlement.

"We have gathered substantial evidence that you have been using a peer-to-peer network such as Kazaa or Gnutella to download and upload music owned by our clients," reads a sample letter provided by the RIAA. "We are writing in advance of filing suit against you in the event that you have an interest in resolving these claims through settlement."

The letter reminds potential defendants that "ignorance of the law is not a defense," and that the law provides for minimum damages of $750 for each copyrighted recording that has been "shared." It also warns potential defendants not to destroy any evidence, such as MP3 files stored on computers, that may relate to the lawsuits.

It says that the RIAA will "proceed to litigation" if it does not hear from the recipient of the letter within 10 days after the date of the letter.

From this point on, the lawsuits against accused file-swappers will proceed on a rolling, weekly basis, rather than in waves of hundreds, an RIAA spokeswoman said. To date, the organization has reached settlement agreements with more than 50 of the people sued in the first round.

Well, there it is, the riaa has definitely found a new way to generate new income, with lawsuits rolling out on a weekly basis. Aren't they inventive? No one has to go to court,the accused just need to fork over whatever the settlement agreement.

Folks, if this doesn't make your blood boil, then I don't know what would cause when I think of what they are getting away with here, I just want to slap something senseless! pepe

now that the public is aware of what the RIAA/music industry is doing...the backlash is gonna hit and they will be hated and will drive many people undergroud. P2P is not stoppable.

Now they can get to people in private and extort money from them, then turn around and say we tried not to sue them.

They are not getting away with it... just yet. I plan on starting a RICO class
action for treble damages. Let them run a bit longer.....

Here's someone who agrees.

Name:

Email:

location: Massachusetts

Message: I believe that this cause is a noble one. The right to download and play music online shouldn\'t be taken away. But the problem is that everyone being attacked by law suits by the RIAA is settling and they are too afraid of taking them on and fighting against them. Someone needs to stand up and show the country, or for that matter, the world, that there is nothing wrong with downloading music. Some one needs to fight them in the courtroom and give freedom to the millions of downloaders out there.

mailing_list: Please add me to mailing list

A class action based on RICO? WOW! Got any more info on your theory you would be willing to disclose?

Regarding this RIAA tactic. This is the same thing that Cablevision does, they did it to a friend of mine. They send you a letter and you pay them a few grand to settle.

I share 6000 songs. Why haven't they got me yet? I'm ready to take them to court.

Admittedly, the majority of my shared songs are not RIAA. In my view, the majority of their "musicians" aren't worth downloading. I don't know if I even have 666 of their "songs". My main interest is Progressive/Power Metal, Gothic Metal, and Death Metal. They have a tendency to ignore those genres. I have done a lot of on-line research and discovered that 95% +/- 3% of all Prog/Power Metal bands are signed with very small labels. They usually have between 10 - 20 bands signed. The majority of the bands I have downloaded, I have bought. I believe in supporting the bands and the small labels who are not associated with the RIAA.

Anyway, I guess I answered my own question. I just can't bring myself to download a bunch of Britney Spears, Backstreet Boys, etc. crap.

Just go away, RIAA.

P.S. Note to EMI. Please drop Queensryche so I can buy their music!

I was in a case called Curley v. Cumberland Farms in 1989-91 against the Cumberland Farms , dairy loss prevention department. They had collected one million dollars by accusing people of shoplifting and terrorizing them into confessing.

We claimed it was extortionate collection of credit, a violation of 18 U.S.C., and therefore a predicate act under RICO.

They settled for 10 million, went chapter 11 , and paid 6.5 million in the plan of reorganization.

This is serious business. I am into this shit.

Curley v. Cumberland Farms, District of New Jersy, Judge Brotman (1991)

This is actually a very good thing and I am PROUD it's going on, let me explain why.

Let's do the math and history here, the RIAA ignores advancing technology, and music lovers around the world take new technology and develop a system to share things online, opening ears and doors and letting people enjoy new and different things, I for one have found a ton of stuff I never would of known about. Now because of the Nazi attitude of the RIAA who wants to control our every move when it comes to entertainment (and I don't throw around that word "control" too loosely), decides to sue every single person in America, even people who have done nothing wrong.

What am I getting at you ask?

Look at what the RIAA has done, they have alienated tens, maybe even thousands of their own supporters, they have started a national boycott, they have turned people to look at other forms of entertainment that they don't control (i.e. indie music I never heard of).

And now, as quoted, EVERY WEEK THEY WILL DO IT AGAIN.

Every week they will further kill their own product, every week they will piss off every American, and some (probably the Justin Timberlake fans) will say I'm sorry, pay them, and support them. How many won't? Every week, someone will learn of the EFF, every week someone will visit this site, EVERY WEEK SOMEONE WILL SHARE NOT MUSIC, BUT THEIR DISGUST WITH THE ACTIONS OF THE RIAA. And people say sharing is a bad thing.

Sue, sue your brains out, when the lawsuits run out, so will the settlement money, sue 60 million AMERICANS, and see how many are left to support you, every American the RIAA sues is holding a shovel, ready to dig their grave.

"Their grave" meaning the grave of the RIAA, wanted to clarify, sorry for the 2x post.

Date: October 17, 2003 @ 9:50 PM
I will represent settling uploaders who want to sue for a refund!!!!!!!!!

." It also warns potential defendants not to destroy any evidence, such as MP3 files stored on computers, that may relate to the lawsuits. "

what if the computer crashed. and lost everything? what would they do then?, and on top of that the hard drive over heated and burned something. if that happened to me, i would be like, well like i have anything valuable on this computer, might as well, download 50 viruses and turn the fan's off.

and or find a big microwave and melt the hard drive and cpu and the powersupply to prove that it overheated.

Wow. I should start offering songs for download now so I can get busted and then cash in.

It sounds like your suit would hinge upon the method used by the RIAA in asking for settlements. I wonder if you could go after Cablevision on the same thing.

Maybe your case is predicated on this statement?

"We have gathered substantial evidence"

They don't have enough evidence to threaten a suit?

So how does this affect the Stop The RIAA Lawsuit boycott week? *rubbing hands together* When do we start the action?

I am compiling a list of e-mail addresses of U.S. college radio stations. Maybe we can keep them updated regarding the news and boycott actions. How about asking them to have a day or week without playing any RIAA music. Kinda like Jimmy Stewart and the newsboys.

Nice!!

Anyone know anyone who settled???

Here is a very informative link.... Please read it....

http://www.soundandvisionmag.com/article.asp?section_id=2&article_id=453&page_number=1&preview=

I have attended a number of music court cases and Congressional Hearings, but none (of course) that involved a case tried before a jury comprised of solid citizens. It has never happened. Seeing the RIAA lawyers in action, one cannot help but feel that they seem inexperienced with forensic presentations; and certainly do not grasp how "corporate" and arrogant they appear, like crows in flock.

Any first-year trial lawyer learns a quick & brutal lesson that juries sniff out any weakness, and only the foolish barrister disregards the "tyranny of the majority." Whether right or wrong in their deliberations, those 12 peers will have your head on a platter (if the judge doesn't do it first.) Small things like dressing down to suit your jury make the first impression that seals your fate no matter how you present the case.

The music industry is comprised of a tiny group of approx. two dozen insider artist lawyers who have wielded power for thirty years. They are indeed intermarried and incestuosly liplocked to management, unlike sports agents and their clients. Safe to say, entertainment law is the best and easiest money in the world, a true scam in more ways than one, and not only because your music artist clients are retarded and drug-addled. They'd have to be to trust YOU to handle their money.

The greatest benefit of practicing law in the music bidness is you never have to appear in a court. In effect, you don't even need to keep up with the current state of contract law, because such trade practices were long ago frozen by gangster tactics!

One egregious flaw (arguably the worst) in our legal system as it has played out in the 20th Century, is the sealed settlement. Leflaw himself will say, well certainly, that is a useful weapon in my own arsenal, and one which I would wield zealously for my aggieved clients.

But how does this help with the betterment of society when the details are sealed? The most common example cited is the breast cancer victim who will refuse the financial settlement of "millions" in the belief that other victims must be made aware of the health hazards involved. None of which would come out publicly if the next law firm had to start from scratch assembling the evidence.

This applies to the music business, be patient. No record manufacturing plant has ever been audited.

Record label "A" will tell a judge that its contract terms with individual artists, sales figures, and royalties are proprietary information that must be sealed tight in a settlement. Because it needs trade secrets kept from Record Label "B."

Nothwithstanding the secrets the label wishes to keep from its own artists. And example is, a Bing Crosby or Elvis Presley negotiates a favored nations clause; e.g., "I am guaranteed in the future that I will receive equal royalties to any other artist." The artist contract in fact forbids anyone to reveal the terms of the agreement, under the threat of criminal prosecution.

But this secrecy is collusion amongst competing companies.

The dirty little secret of the music business almost came out in the MP3.com court case. A little thing called copyright paperwork. I would estimate that easily 50% of copyrights were not filed in the old days. Not only would that little checkbox marked "work-for-hire" invalidate many of the copyright papers filled out by label weasels, but vast amounts of contract paperwork have simply vanished in the physical transfer of catalog assets. Along with original master tapes...

For example, a master recording by Ricky Nelson on Dot assigned to Liberty sold to ABC Records, which was bought by MCA, which was bought by Vivendi. One fellow told me with exasperation, "What do they expect of me? That was a Stax recording, for god's sake!"

As if that was some excuse for the dirtiest operation that ever existed.

In the MP3.com case, defendant had the plaintiff (MCA) on the rocks. ---bear this in mind in future music cases. NO RECORD LABEL CAN AFFORD UNDER ANY CIRCUMSTANCES TO PRODUCE PAPERWORK OR PROOF OF OWNERSHIP.They MUST SETTLE. All the rest is brinkmanship and sabre-rattling.

Needless to say---a jury would hang a record label every time, given one look at the vulture gloom of those RIAA bad boys. Nor would any jury ever vote against a Hollywood celebrity artist.

Consider the disposition of Lyor Cohen v. TVT.

I now return you back to your original programming & argue well, Dmusic pals. After this point, Mighty Mighty Leflaw will keep his cards close to his vest, thank you very much, he will be going to trial!

Bear in mind that RICO is one mother of an overbroad prosecutorial tool. In the finding of collective bargaining fraud--all industry contracts are suspended. In the case of our friends, the legacy artists, such as the Doors, CS&N, Boz Scaggs, Beach Boys, Chuck Berry, the Tempts, the Byrds---all free to walk out the door with master tapes in hand. Maybe even triple punitive damages.

About time, I sez.

So, now the RIAA won't be filing the lawsuits, then settling. So I'm guessing that these suits that were never filed will never be on record, so they'll be unlawfully taking these peoples' money.

According to this article from September 30th, 52 people who were sued settled and 12 others who were targeted settled, but the RIAA did not release the names.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/09/30/BUGSF214IF1.DTL&type=business

We know about Brianna Lahara and Lorraine Sullivan. There are also the 4 college students from about 6 months ago whose names can be found on the internet.

Dan Peng

EXCELLENT post tomsong, and great insight as to the down and dirty side of things!

Just a question, as to the class action status, is part of the sine qua non of class action, that there is not a discrete number of co-plaintiffs? Any other words, for a judge to certify or grant class action status, is the number of plaintiffs a factor in whether class action status is granted/certified?

i.e., do there have to be a lot of john and/or jane does as co-plaintiffs or members of the class of plaintiffs?

What about Jane Doe? Is there a way to contact her or her attoneys? Bill must have met them at the Tech TV Music Wars.

Glenn Peterson and Dan Ballard, attorneys at the law firm of McDonough, Holland & Allen, said they filed the motion represent NYCFASHIONGIRL

555 Capitol Mall 9th Floor
Sacramento CA 95814-4692
916.444.3900 tel
916.444.8334 fax

I spoke to Dan Ballard. Lets get a few more.

The RIAA has over 200 names ready for this next round, and has said they will do the same thing every few months until "every jurisdiction is covered "(I heard that on TechTV a little bit ok)...
I also believe they will relax their 1000 songs criteria.
Current list of the names of people sued..
http://www.techtv.com/news/culture/story/0,24195,3521792,00.html

I meant a bit ago...not a bit ok...
my big bulky fingers miss these tiny keys sometimes

Joseph Nievelt, Aaron Sherman and Jesse Jordan.

http://www.wired.com/news/digiwood/0,1412,58783,00.html

I believe this is Peng's web site:

http://chewplastic.com/

I hope this isn't an uninformed question, but has a class action counterclaim by those sued by the RIAA been contemplated? Is the EFF involved and is the ACLU interested? Can those of us under the threat of being sued be included in the class? What would be the basis of our action? RICO terrorism?

I don't know. Each has their own strategy, I suppose. Thats the problem. Divide and conquer.
Rico does not have an injunction provision; only treble damages and attorneys fees. But it
does provide for DIVESTITURE.

Someone will have to take the initiative. There are also civil rights claims.

Here's a RICO class action against Direct TV, etc., for conspiring "to extort millions of dollars from plaintiffs and the members of the Class by forcing them to pay enormous penalties, unrelated to any actual damages, for purported unauthorized interception of satellite television programming, or “piracy” violations."

www.geocities.com/jeffrey+wilens/SOSA-RICO-CLASS-ACTION.htm

Interesting.

www.geocities.com/jeffrey+wilens/SOSA-RICO-CLASS-ACTION.htm

darn, the link isn't coming out.
http://www.geocities.com/jeffrey+wilens/SOSA-RICO-CLASS-ACTION.htm

I can't believe they can release names like that. They havn't even proven that these people did anything but they are releasing their names all over the net.

Question. I know I'm a novice in legal matters but if only 50 people out of 261 have settled, doesn't that imply that 211 will take the matter to court and perhaps half that will go to jury? so there's still a good chance of a jury knocking this down.

Also, there's one advantage to the boycott movement with the RIAA notifying and settling in secret. without the shock of publicity, those not affected will not know what's going on with the lawsuits and not be as scared away from file sharing as they were when the first round hit the press.

Something is fishy. Why are they telling people not to remove or destroy the files?Maybe some one has already challenged their evidence.

"It also warns potential defendants not to destroy any evidence, such as MP3 files stored on computers, that may relate to the lawsuits."

Ok fine I won't destroy anything. Take out hard drive, mail hard drive to best friend in England tell her to hold on to it for a few months, put in another hard drive with my website, and some games on it, submit the machine as evidence, and claim that I don't use P2P. Ummm......DUUUUUHHH RIAA DUMB AGAIN.

Morons.

They arent that dumb Litheon, well if they access your new hard drive and see the files were just new they know that you must have put a new hard drive to your computer. Well to save your ass just burrow some else hard drive with OS installed (must have old files).

Im with you guys, sue RIAA, sue as soon as possible. Teach these guys a lesson.

It could be argued that the RIAA has become a blatant example of "Robin Hood" in reverse -- certainly the part of stealing from the poor (as is being done here). And the REAL stealing is being perpetrated by these thugs with gold records on their walls.

Backup MP3's to CD-R/DVD-R. Use a utility like Eraser to wipe MP3's from hard disk. Obliterate any sign of said files. Run of the multitude of evidence eliminators out there to remove evidencial tell tale signs. Give CD/DVD to someone trusted to look after. Deny everything and put the onus on them to prove it.

Or borrow a friends Mac and say you never use Kazaa

Better yet- Get another computer and keep your "mp3 box" off the internet.
Use it as a household and cd-burning system.

For your own use of course.

It sounds like you could erase all evidence and not be guilty. they don't want that to happen so they say that stuff. it only has to happen once. then everyone will know. Its obvious that they make mistakes with ip #s. thats what happened, its just another mistake thats all you'd have to say.

gramm is probably right. It's altogether possible that an actual court and judge will demand more than just a color printout of a screen capture than anyone with Photoshop could create. The only thing a screenshot of a Kazaa demonstrates is that you had a computer, you had a printer, and perhaps, a picture editing/creation program. LOL..I can just see them creating a little AVI of a screen showing them downloading the file, by the size of the download increasing...

so this is proof now in the New World Order...screenshots of alleged wrongdoing. I can see a guy like Winston from 1984, digitally creating "reality" and "documenting it"
in photoshop. LOL..."REALITY, PHOTOSHOP AND YOU, CREATE IT"

Scary. Digital Kafka

I also like Henrik Ibsen's AN ENEMY OF THE PEOPLE

Like I would listen to the RIAA and not destroy evidence. The RIAA is running on empty. Maybe there should be a throwawayyourcourtsummons.com

what i dont understand is how any one fears this. just remove your hard drive, buy a new one, install linux on it. goto court tell them look my computer has no mp3s on it, i use linux, i cant use kazaa on linux.

case over.

Hey all you lawyer types just love to argue. But I think you may be missing the fine print. Every lawyer in the country will tell you to settle a case for $2500, even $7500. Say you win in court and the RIAA appeals. when everything is said and done you end up in district court with a lawyer bill of $50,000. Win or lose you still lose.

The RIAA may be getting the big sharers off the net at $2500 - $5000 each, and since they are a trade organization they dont have shareholders to question the money that is being spent to do this.

The RIAA is getting what it wants, cheap!

Everyone who sues usually issues a settlement letter to avoid court. I am not sure but there would be nothing in any court documents to indicate anything.

Now Leflaw, can't you get the supoena lists? This would be key to a class action suit. I think Leflaw is onto something here, a class action suit.

The problem is the courts take too long, it could be 10 or more years for a judgement. By that time there would probably be something else in music.

I think they are hoping people will panic and deleat all mp3s. Hell, they take money from people settling with them without going to court + they get rid of the mp3s

IF they come looking they will have little to gain by sueing as I don't have the money or assets to seize to cover even a tenth of what they would be asking for. The only option would be to go to court and make them prove their case and then file bankrupcy to keep them from collecting a dime and never be able to work for a living or do much else ever again.

Congress just slapped them on the hand.. they need to kick them to the road and send them on their way and stop their madness! hmmm too all of you need to do what I did when you get those buy 1 cd get 12 free BMG Music things back telling them you're boycotting them and the reason or reasons why. I put it on the outside of the envelope also.. just to make sure everyone who works or handled it would see my reasons why!

This is an addition to an idea I read on the Action Forum, which might be a useful defense (though could be very time consuming for someone with a large number of files).
Get the size of each file (if possible, in both bytes and seconds). Then make an audio file of you talking about anything (I would suggest Anti-RIAA propoganda). Do what you can to get the file the same size as one of your previously shared files and give it the corresponding name. Also set the date back on your computer clock to before you started sharing. Now go to court and for your defense say a file name means nothing (easy to prove) and that the RIAA must listen to each song to prove whether or not they are copyrighted material as it is a valid part of your defense. Imagine how long that would take, and it would drive the RIAA out of their mind (though maybe the judge and jury as well). Maybe say unless the RIAA wishes to drop the case, I will force the court to listen to every one of these songs.

It could also work if someone creates these files and then shares them as RIAA file names to see if the RIAA comes after them, and then file a countersuit for a frivilous lawsuit.

RICO! I like the sound of that one. I'm in, just tell me what I gotta do *smirk*
This is nothing more than extortion, but legalised. If I sent leflaw a letter, saying that I wouldn't kill his cat if he paid me 500/incident for the times he's used my name in public, I'd not only be laughed outta court, I'd be LED out of court... in handcuffs.
Okay, now when does the "new" amnesty thing take effect. Come on, there has to be one. They showed their collective asses on the last one. How many of the 204 actually applied for "amnesty"? oh.. and and speaking of amnesty...is this letter similar in the language? Does it say "we, the RIAA, wont' sue, but our members might"??
points to ponder
ttmmm