Long-shot suit charges RIAA with extortion, racketeering
By JOHN BORLAND
Staff Writer, CNET News.com
Wednesday, Feb. 18, 2004
It's probably not the first time that record company executives have been likened to Al Capone, but this time a judge might have to agree or disagree.
A New Jersey woman, one of the hundreds of people sued for alleged music-swapping by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal anti-racketeering act.
Through her attorneys, Michele Scimeca contends that by suing file-swappers for copyright infringement, and then offering to settle instead of pursuing a case where liability could reach into the hundreds of thousands of dollars, the RIAA is violating the same laws that are more typically applied to gangsters and organized crime.
"This scare tactic has caused a vast amount of settlements from individuals who feared fighting such a large institution and feel victim to these actions and felt forced to provide funds to settle these actions instead of fighting," Scimeca's attorney Bart Lombardo wrote in documents filed with a New Jersey federal court. "These types of scare tactics are not permissible and amount to extortion."
Ms. Scimeca is one of a growing number of people fighting the record industry's copyright infringement campaign against file-swappers, although few have used such creative legal strategies.
According to the RIAA, which filed its latest round of lawsuits against 531 as-yet-anonymous individuals on Tuesday, it has settled with 381 people, including some who had not yet actually had suits filed against them yet. A total of nearly 1,500 people have been sued so far.
The industry group says that "a handful" of people have countersued, using a variety of claims.
"If someone prefers not to settle, they of course have the opportunity to raise their objections in court," an RIAA representative said. "We stand by our claims."
Few if any of the cases appear to have progressed far, however. The first RIAA lawsuits against individuals were filed more than five months ago, although the majority of people targeted have been part of the "John Doe" campaigns against anonymous individuals this year.
Several individuals and companies have started by fighting the RIAA attempts to identify music-swappers though their Internet service providers (ISPs).
The most prominent, known by the alleged file-swapper's screen name "Nycfashiongirl," resulted in at least a temporary victory for the computer user. A Washington, DC, court ruled in December that the RIAA's initial legal process for subpoenaing ISP subscriber identities before filing lawsuits was illegal. Because "Nycfashiongirl" had been targeted under this process, the RIAA dropped its request for her identity.
However, that may have provided only a temporary reprieve. According to the Electronic Frontier Foundation, a civil liberties group that is closely following the RIAA's campaign, the Internet address used by "Nycfashiongirl" was included in the batch of lawsuits filed on Tuesday against anonymous individuals, raising the likelihood that she will be drawn back into the courts.
Separate attempts to fight subpoenas are ongoing in North Carolina and St. Louis, where the American Civil Liberties Union and ISP Charter Communications are respectively challenging the RIAA's information requests.
In San Francisco, computer user Raymond Maalouf has taken the first steps toward fighting the RIAA's suits. His daughters were the ones that used Kazaa to download music, and one of them even wound up in last month's Super Bowl advertisement for Pepsi's iTunes promotion, which featured a handful of teens caught in the RIAA dragnet.
In documents filed with San Francisco courts, Mr. Maalouf's attorneys noted that teachers had openly discussed downloading music through Kazaa and using the downloaded songs in classes at Mr. Maalouf's daughters' school. That should be a protected fair use of the music, the attorneys said.
At a status conference held in San Francisco early in February, Mr. Maalouf's case was just one of five RIAA lawsuits moving through the courts together, attorney Ted Parker said. However, several of those others involved defendants who appeared close to settlement, he added.
Even RIAA critics look at Scimeca's racketeering-based countersuit as a long shot. But it's worth trying, they say.
"It is the first I've heard of anyone attempting that," said EFF legal director Cindy Cohn. "I guess that is a silver lining of the fact that the RIAA is suing so many people, that there are a lot of lawyers trying to figure out ways to protect folks."