Music piracy defendants fighting back
Settling resisted, counterclaims
filed.
By Tresa Baldas, Staff reporter
The National Law Journal
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.
Copyright 2006