Lawyer for woman sued by RIAA asks for sanctions, gets sanctioned himself

Last year, an attorney representing a woman sued by the Recording Industry Association of America claimed his client is innocent and asked a federal judge to levy sanctions against the association's lawyers.

Instead, in an unexpected legal twist, U.S. District Judge Terry Means ruled on May 16 that it was entirely likely that the woman was violating copyright law via the Kazaa file-sharing program -- and ordered that her attorney be sanctioned for wasting the court's time with "frivolous" arguments.

"Frivolous motions for sanctions that harass the opposing party's attorney, chill that attorney's zealous representation of his client, and needlessly increase the cost of litigation cannot go unpunished," wrote Means, whose court is in the northern district of Texas.

The lawsuit began when Safenet's MediaSentry flagged someone using Kazaa to share copyrighted recordings at 5:42pm EST on January 6, 2005 using the Internet Protocol address 172.143.120.109. MediaSentry reports finding approximately 850 sound files in that shared directory.

One of the files was a playlist with the name "Diane.kpl". The RIAA's subpoena to AOL requesting the identity of the account holder turned up the name of Diane Heslep in Arlington, Tex.

Heslep hired attorney Thomas Kimble to represent her, and they took an aggressive litigation stance. Settlement talks broke down. Kimble claimed the lawsuit was "predatory." Kimble refused to talk to the RIAA's national lawyers and only the local lawyers. Kimble offered to let the RIAA inspect Heslep's hard drive, but only in exchange for a payment of $10,000 if it showed she was not currently engaged in copyright infringement. (The RIAA rejected the offer.)

The paperwork that Kimble filed with the court claims that his client was at work at 5:42pm on that day and the AOL account was used by unidentified secondary users. Heslep also submitted a sworn statement saying she was not using Kazaa then -- but, narrowly, did not deny using the software to infringe copyrights at any other time.

In response to Kimble's request for sanctions, Judge Means wrote: "Even if Heslep herself was not online on January 6 acquiring and distributing plaintiffs' copyrighted recordings, it's reasonable to infer that someone she knew and gave permission to use her AOL account was... This is further buttressed by the fact that to date, although she alleges there are secondary users who have access to her AOL account, she has refused to provide any information to plaintiffs regarding these secondary users-possibly assisting those secondary users in escaping liability."

Means also wrote: "Second, Heslep's claim that AOL confirmed that she was not online at 17:42:34 EST on January 6, 2005, is simply false. AOL confirmed twice for Plaintiffs that a screen name in Heslep's AOL account was online at the date and time in question."

The judge ordered Kimble to personally pay the RIAA's costs and attorney fees for the time they spent defending against his "frivolous" charges. He also noted that Kimble had been sanctioned before, in 1998, for "bad faith" efforts to oppose requests from opposing counsel for material to which they were legally entitled.

[Dalkorian]

great

Now the RIAA is buying judges? Cute. I especially liked this
comment:

"... although she alleges there are secondary users who have
access to her AOL account, she has refused to provide any
information to plaintiffs regarding these secondary users-
possibly assisting those secondary users in escaping liability."

Assume for a moment that Heslep's allegations are correct. Now
she has to somehow get access to AOL's servers in order to
determine WHO is hacking her account? What happens when she
does that, considering that unless she works at AOL she doesn't
have permission to go through AOL's servers?

If you work for or support the RIAA or MPAA, please wear a sign
on your head indicating this so I can run you over with my truck
when I see you on the street.

[notgonnatellya]

I think you're missing the point

In 1998, virtually everyone was using dial-up. More than likely, AOL not only knew what account had the IP, they knew what phone dialed in.

If that is true, and that's what it sounds like, then it's just a matter of who was in the house at that time.

In this case, I suspect that the RIAA only has to prove that it was likely the defendant, or someone whom she authorized, that was sharing the files.

[MadMax2003]

Try and focus

Listen Chief

It really isn't a hard concept to follow here so try and focus for just a few seconds. I promise you will not miss more than a few seconds of Jerry Springer.

These "alleged secondary users" this story refers to is indicating someone else in her house used one of the secondary user logins on her aol account. Most likely it was one of her children using the account. It definitely did not indicate someone hacked her aol account just to download music off of Kazaa.

Chester I will happily loan you 50.00 for you to enroll in an online GED course if it means we won't have to read any more idiotic posts from you. Just think you can do your studying at home without having to take time off from your job at Walmart. Just let me know where to send the check.

[baconstang]

She should keep track

Of who uses her account. Unless, of course, she actually did it, like
millions do. It's stealing, no matter how you rationalize it. It'd be
great if one payday 'truck boy' got a letter instead of a check,
explaining why he needs to come up with a new paradigm for his
compensation for working.

[aka_tripleB]

I'm not sure that using an IP address is too reliable

IP and MAC addresses are incredibly hard things to spoof. And there are numerous ways to get someone's user name and password, so how can having only the IP address be enough to prove someone did something? What ever happened to motive, opprotunity, and means? Ok, most of the people that the RIAA go after have all three, but using their logic anyone with a PC (and apparently some without) are guilty. But there are probably still many people that the lawyers tell to settle because it would be cheaper even if they are inocent. What the RIAA is doing reminds me of the Salem witch trials. 172.143.120.109 is a file sharer. 241.19.34.118 is a file sharer. You get the point.

Really, you need to have more than an IP address to know who is sharing a file. The courts should require that a physical address to verify that the person with the IP address is actually the one using it.

[lynxss]

IP alone is not enough to go on

Unless you pay extra to your ISP most home computers get dynamic IPs that change fairly often each time you connect. I'm not sure if AOL allows it but you could have any number of computers behind that IP with masquarading, theres no real way for them to stop you. Just an IP is not enough to go on because it could be anyone, even a kid parked in the street with a laptop piggybacking on thier wireless.

IP addresses are fairly easy to spoof, look at where all your spam comes from. MAC addresses take a little more work and knowledge to do but not overly difficult either, most decent home routers and Wireless Access Points will clone your MAC address with the click of a button so you can put it in place of your computer for more convenience without your ISP knowing the difference.

[Skylaw]

Missing the Point

When a party to a suit makes an argument and requests sanctions
against the other side for pursuing their case, and then smugly sits
back and refuses to provide any evidence to support their
allegations or to prove the case for sanctions, it is frivolous. The
rules governing attorney conduct do not permit such tactics. Some
attorneys use this approach simply as a way to tie up opposing
counsel's time by forcing them to defend their licenses (and if the
opposing party is small, to use up their resources). It's a rotten
tactic, and I am glad to see the judge see through it.

[Travis Ernst]

Sanction RIAA

It seems she showed she was not online at the time, with proof
from her ISP.

Accounts can be hacked if people use stupid passwords, thats
the most frequent problem. They reuse the same password, or
PIN so they don't have to remember as many. I learned that
early on, and as such have too many passwords complex (you all
know the rules, no words, not your ph#, address, or related to
you or your "public" history) so they can't be easially hacked.

RIAA seems to have "bought" a judge here. If it was that the
account was reg'd to her they put the blame on her... Just like
cars and red light camera violaters go by the plates. I don't
understand the logic. I still say THEY have to prove the person
they are chasing they must PROVE is the one violating.

You can spoof IP addresses easially by a few means... I won't go
into detail for obvious reasons. But if it DID originate from her
address there would be history on her computer to prove or
disprove it. The secondary problem, depending on security, is
"piggybacking". It all depends on how tight you have set your
security and user accounts on the computer.

I still insist it's up to the accusing party to prove their case. If
I'm accused of a crime, they must PROVE *beyond doubt* I did it;
not guilty until proven innocent.

[baconstang]

Perhaps the 850 songs

On her computer, including the copywritten files in question had
something to do with that. If goods were stolen and the getaway
car is traced to your house, and you're there with the goods in your
house, you don't think you'd be charged? It seems like her defense
is "don't bother me".