February 18, 2004 1:39 PM PST

RIAA sued under gang laws

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 accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act.

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One of the hundreds of people the RIAA accused of copyright infringement countersues, pegging the record-label group with extortion and violations of the federal antiracketeering act.

Bottom line:
This is one of just a handful of countersuits. Even critics of the RIAA view it as a long-shot but one worth trying, and a sign that lawyers are working on arguments against the RIAA.

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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."

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, D.C., 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, Maalouf's attorneys noted that downloading through Kazaa was openly discussed at Maalouf's daughter's school by teachers, and they downloaded songs used in classes. That should be a protected fair use of the music, the attorneys said.

At a status conference held in San Francisco early in February, 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."

7 comments

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What's The Fuss!
It's amazing the RIAA needs to sue people for such an inferior products. A MP3 is not a close second to a 16 or 24 bit audio recording at 44.1 Kor 96K and often the music itself is awful. It's amazing people download them for $.99.
Posted by mtlorenz (2 comments )
Reply Link Flag
What's The Fuss!
It's amazing the RIAA needs to sue people for such inferior products. A MP3 is not a close second to a 16 or 24 bit audio recording at 44.1 Kor 96K and often the music itself is awful. It's amazing people download them for $.99.
Posted by mtlorenz (2 comments )
Reply Link Flag
suit against RIAA
I recently received notice of a law suit against me because my teenage daughter was using Kazaa to download music. I agree with Ms. Scimeca and her attorney that this amounts to a scare tactic and extortion. i would like to know what I can do to fight back. I think the guilty party is Kazaa and they are not being sued at all. Go after the drug dealers, not the users!! I am going through a terrible family crisis at this time (47 year old ex husband/children's father suffered a stroke in May and is now in a nursing home) but the legal representative still wants me to send $3500-reduced from $4000-to settle the claim. I am frantic!!
Posted by (1 comment )
Reply Link Flag
Well I feel for you. I hate the RIAA as much as anyone and the lawsuits against teens are horrible. But the idea that Kazaa is to blame for your daughter's actions is ridiculous. Your daughter went on Kazaa and could have downloaded any number of songs that are not copyrighted, and instead she willfully downloaded songs that are under copyright. Furthermore Kazaa makes it pretty darn easy to turn off your sharing which would have almost certainly kept you out of legal trouble. Gun companies arent liable for the people who die in shootings, and Kazaa isnt liable for your daughter breaking the law.
Posted by kpkp123 (2 comments )
Link Flag
Just a diversion
This issue will soon go away when your traitor Republican and Democratic "leaders" impose their taxes on the Internet. Few will care to partake in file downloading when they are scrambling to get gas money to go to work. Give it time...
Posted by GrandpaN1947 (187 comments )
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Damn Right
What the RIAA is doing IS extortion by definition. In simple terms "do this or this will happen" is extortion. The RIAA is offering these "deals" because they know their tactics would fall apart in court. First, using an ISP to prove identity is reasonable doubt in the first place. The IP address only proves what connection did the downloading, not what person did it. For all they know, someone was browsing on their neighbor's open-air wifi connection. Should the neighbor goto prison? NO! Unless the RIAA has a picture of you downloading a file, they can't prove beyond a reasonable doubt who did the downloading. And if they ask you directly "Did you download this", plead the 5th amendment in that you can not be held to incriminate yourself. Hell, countersue for deformation of character, wrongful accusations, wasting time, and lawyer's fees. You could easily take them for 5 million dollars per case.
Posted by ProtectingYourRights (2 comments )
Reply Link Flag
What are you talking about?
I am an avid audiophile, and I can tell no difference between a 5 mb MP3 and a 50 mb WAV file. MP3's are distributed in 256k quality in 16bit at 48 khz. Learn what you're talking about before posting.
Posted by ProtectingYourRights (2 comments )
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