Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution

by Pamela Jones
Groklaw

June 25 2007

Tanya Andersen, the plaintiff here, is the single mother in Oregon that the RIAA prosecuted for the last couple of years and then "on the eve of summary judgment" dropped the lawsuit with prejudice. Her counterclaims remain and are restated here and supplemented. It will soon be joined into a single case. So, what started as Atlantic v. Andersen has now turned around, and it is now Andersen v. Atlantic and the defendants are the music companies making up the RIAA -- Atlantic, Priority Records, Capitol Records, UMG and BMG -- the RIAA itself, the Settlement Support Center, and SafeNet, formerly known as MediaSentry. She is asserting claims under the Computer Fraud and Abuse Act and the RICO Act, the Racketeer Influenced and Corrupt Organization Act.

Update: So many of you asked about copyright misuse, and what the consequences can be, I found a paper for you to read, "Competition Law and Copyright Misuse" [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=986891 ] by John Cross and Peter Yu. Here's the paragraph I think you are looking for:

The independent doctrine of copyright misuse ... focuses on whether the owner attempts to avoid some limit imposed by copyright law.... Rather than criminal penalties or treble damages under U.S. antitrust law, the sole “penalty” for copyright misuse is the inability to sue the affected party for infringement. That penalty applies only with respect to the particular licensee bound by the provision, and exists only for so long as the misuse continues.

Her complaint states the following, in part:

1.2 On August 26, 2005, while Tanya Andersen and her 8 year-old daughter were sitting down to dinner a legal process server knocked on her door. When she answered the door, she was served with a lawsuit filed by RIAA-controlled music distribution companies in a federal court. Ms. Andersen was shocked, afraid, and very distressed. The lawsuit falsely claimed that she owed hundreds of thousands of dollars to these companies as penalties for copyright infringement. Ms. Andersen knew that she was completely innocent of the charges against her. She answered the false claims and asserted counterclaims seeking damages. During discovery, Ms. Andersen learned that the lawsuit filed against her was based solely upon an illegal, flawed and negligent investigation. Almost two years later, on the even of summary judgment, the lawsuit was dismissed with prejudice. Ms. Andersen's counterclaims continue in that case. Those counterclaims are restated here as direct claims. New claims are also set forth here against the former plaintiffs in that action and against new additional parties....

2.1 Tanya Andersen pursues this action to recover compensation for the significant damages these defendants directly caused her. She also seeks punitive damages, statutory penalties, litigation fees and expenses, and declaratory relief....

5.2 Defendant MediaSentry is in the business of conducting personally invasive private investigations of private citizens in many states in the U.S. for the RIAA and its controlled member companies. ...

5.3 Pursuant to a secret agreement, the RIAA, its controlled member companies and MediaSentry conspired to develop a massive threat and litigation enterprise targeting private citizens across the United States....

That's just up to page 5 of the 34 pages. When the defendants answer, I'll post that as well, so you can hear both sides. But I knew you would be interested, because when the SCO saga began, SCO executives pointed to the RIAA as a model they felt worthy of imitation, IIRC. Why yes, yes they did. Here's one example [ http://www.groklaw.net/article.php?story=2004031003470588 ], Darl McBride at the SCO 1Q conference call on March 3, 2004, the day SCO announced it was going after Linux end users like the RIAA was going after P2P downloaders. The analogy was not apt, but it's what he chose, because he saw similarities, he said:

Use of copyrighted material without permission is prohibited under copyright law and can carry significant monetary damages. I reference these actions as elements of SCO's enforcement initiatives and to underscore SCO's commitment to vigorously protect and enforce our intellectual property, our System V code, our contract rights, and our copyrights. With representation of Boies, Schiller & Flexner and their associated firms, we have now taken the significant next step in the process of enforcing our contract rights and copyrights through legal action against end users.

We believe that there are important similarities between our recently legal actions against end users and those actions that have taken place in the recording industry. It wasn't until RIAA ultimately launched a series of lawsuits against end user copyright violators that the community-at-large became fully educated regarding the liabilities associated with using copyrighted materials without providing remuneration to the copyright owner. We believe that the legal actions we have taken and will continue to take will have a similar impact on end users of UNIX and Linux. We anticipate that there are many end users who have not considered the ramifications of the unlicensed use of SCO copyrighted technology and that an increasing number of companies will now take appropriate action to license SCO's intellectual property.

His prediction didn't come true, of course. His mean dream either. And recently, SCO told the court in the Novell case that even if they win against Novell as to copyright ownership, SCOsource is dead. One difference between SCO and the RIAA is that the RIAA at least really owns the copyrights.

The thing about litigation is this: both sides need to "consider the ramifications" before they leap off the diving board into the pool. I never support copyright infringement, as you know. But as it turned out in the case of SCO, there wasn't any that I've seen on the horizon for as far as the eye can see, and I climbed as high up the main mast as I could get for the very best view. I see nothing. I never will say you should go against the law or violate anyone's copyright. But the copyright owners have laws to obey as well, and now we will see how that side of the coin looks in a court of law.

05:07 PM EDT

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