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Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Monday, June 25 2007 @ 05:07 PM EDT

You probably want to read this complaint just posted on Recording Industry vs. the People, Andersen v. Atlantic et al [PDF]. I think we may be watching history being made before our eyes. The worm is turning.

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" 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, 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.


  


Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution | 306 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections (if any) here please
Authored by: nsomos on Monday, June 25 2007 @ 05:21 PM EDT
It might be nice to have the title
have a hint in it.


In the last sentence

"court a law"

might that be

"court of law"

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Monday, June 25 2007 @ 05:21 PM EDT
Note to SCO...pay attention cause your time is coming...

[ Reply to This | # ]

Off Topic Posts here please
Authored by: nsomos on Monday, June 25 2007 @ 05:23 PM EDT
Some people love clickys.
You can follow the directions in the 'Important Stuff"

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: eggplant37 on Monday, June 25 2007 @ 05:32 PM EDT
I just finished reading the complaint and had to suppress gales of laughter to
avoid frightening my wife into thinking I had gone nuts. If Ms. Andersen
prevails, though, is it possible that RIAA may be enjoined from pursuing other
such lawsuits in its campaign against filesharing without first finding better
evidence? It seems like from everything I've read about them, all their suits
are fishing expeditions designed to coerce people into paying for them whether
they actually shared files or not. I think it would be a good idea to get these
deep-pocketed companies to put up some competent evidence before being allowed
to open up litigation against anyone.

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: ExcludedMiddle on Monday, June 25 2007 @ 05:37 PM EDT
What a complaint! Definitely do read this folks. It's really something.

I hope that she nails them to the wall. If she succeeds, even partially, she
will not only get monetary damages, but this case will be cited repeatedly by
everyone else who is sued in their ill-considered campaign, bolstering their
counterclaims.

As it is, she has already had a very powerful success. It was already proven in
this case that they identified the wrong person (which can show that their
methods are seriously flawed). Even worse, they continued to pursue the case
when they knew without question that they did not have the right person. And in
this case, it's a disabled single mother taking care of a then-7 year old. And
now a 10 year old. A 10-year-old that they wanted to drag into a face-to-face
deposition.

I think that any jury will jump all over the RIAA based on this complaint. If
they can prove, as they allege, that the RIAA had someone call the girl's
elementary school pretending to be the girl's grandmother... Well, let's just
say that I wouldn't want to be them. I hope the damages set them back everything
that they've made by this legal campaign and more.

[ Reply to This | # ]

At least the RIAA really owns the copyrights
Authored by: DannyB on Monday, June 25 2007 @ 05:39 PM EDT
That's only because they force the artists into "agreeing" to that.

A wise narn once said:

"An agreement made under duress is no agreement at all."




---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Stevieboy on Monday, June 25 2007 @ 05:59 PM EDT
Perhaps, PJ, you should say "parties who CLAIM to be copyright
holders...."

[ Reply to This | # ]

RIAA loses rights to songs at paragraph 18.6-7
Authored by: Anonymous on Monday, June 25 2007 @ 06:01 PM EDT
Am I reading this right?

In the complaint, at page 33, paragraph 18.7:

"18.6 Such actions constitute a misuse of copyrights, and lead to a
forfeiture of the exclusive rights granted to defendants by those laws "

and

"18.7 Plaintif is entitled to judgment that defendents have forfeited the
exclusive rights, if any, which they possess in and to the sound recordings
which they have allege her to have infringed."

Interesting to think that RIAA might be *LOSING* copyrights by engaging in these
frivolous suits!

[ Reply to This | # ]

Language Alert!
Authored by: alisonken1 on Monday, June 25 2007 @ 06:26 PM EDT

Please see the posting guidelines on language use for this site.


---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com
http://www.mutagenix.org

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Monday, June 25 2007 @ 06:37 PM EDT
What goes around, comes around.
Could people go to jail for any of these if proven? That would be the icing on
the cake.

[ Reply to This | # ]

If the RIAA and company is smart
Authored by: Anonymous on Monday, June 25 2007 @ 06:52 PM EDT

They'll offer her an out-of-court settlement to close the issue. Make sure the offer:

  1. Includes an NDA so she stays quiet.
  2. Is significantly more then what she's likely to make out of a trial, for ex. (and IANAL so this is what I would probably accept) lawyers costs + $300,000. Of course, I don't know what she's likely to get from trial, it really depends how much the recording agencies value the music copyrights at risk. So perhaps the price should be closer to a cool Mill.
Strategically speaking, that would "hide" the precedent that was set so others have a harder time following it. The end-result would be that it is an unknown rather then a known which is going to happen if the case is found against them.

RAS

[ Reply to This | # ]

hey PJ, here's something that dovetails...
Authored by: jtiner on Monday, June 25 2007 @ 06:54 PM EDT
with this story.

AT&T helps RIAA

[ Reply to This | # ]

I used to really like Kelly Clarkson's songs.
Authored by: Anonymous on Monday, June 25 2007 @ 07:05 PM EDT
But then, she started her lobbying work in some congressional hearings for RIAA
in DC. I guess you just move on sometimes.

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: JamesK on Monday, June 25 2007 @ 07:13 PM EDT
I seem to recall reading, in the SCO case, about abuse of copyright could lead
to loss of copyright. It sure seems an appropriate remedy here.


---
Let me know if you don't receive this message.

[ Reply to This | # ]

More parallels to SCOG?
Authored by: Anonymous on Monday, June 25 2007 @ 07:42 PM EDT
Hmm. Ya think maybe:

Fraud?
Fraud upon the Court?
Collusion?
Racketeering?
Abuse of Process?
Dereliction of Duty as an Officer of the Court?

... might be enough to finally put liars, cheaters, and low-lifes like RIAA,
SafeNet, or even SCOG and Microsoft out of business? Hey, we can dream....

[ Reply to This | # ]

Tanya Andersen ..stay the course fund?
Authored by: tce on Monday, June 25 2007 @ 08:27 PM EDT
Hmmm, Mom, single child...cash now or a multi-year lawsuit?

How about a Stay-the-course support fund?
Lots and Lots of music lovers might plunk down 14.99 to help cover her costs
during the next few years...

I will.
--Tom

[ Reply to This | # ]

Looks like they're finally going the way of all bullies
Authored by: Anonymous on Monday, June 25 2007 @ 08:35 PM EDT

It's clear that if they'd just admitted they were wrong they could've carried on
running their scam for who knows how much longer.

But they've got that biggest-kid-in-the-playground bully mentality. "Even
if I'm wrong I'm right - what ya gonna do about it smallfry?"

Until one day they find themselves lying on their back, with a black eye and a
dazed expression, trying to remember who it was they were intimidating just
before the lights went out!

Got to love the guys Ms Andersen has representing her - I started wondering if
they were going to work the Geneva Convention in there somehow! <grin>

I think maybe they're offended that the RIAA purport to be lawyers. As they
should be.

[ Reply to This | # ]

I support your expletive on the grounds of accuracy (grin) but ...
Authored by: Anonymous on Monday, June 25 2007 @ 08:44 PM EDT
... PJ prefers more polite language here.

Speaking as someone who's been flamed a couple of times for my own use of
language!

[ Reply to This | # ]

Technical question
Authored by: Anonymous on Monday, June 25 2007 @ 08:45 PM EDT
Given that RIAA/safeNet's methods of identifying infringers have now been proven
flawed, does that impact any previous verdicts, in which the RIAA/MPAA won?
What about on-going RIAA litigation?
Just curious


[ Reply to This | # ]

Page 18 of the PDF.... sweet....
Authored by: Anonymous on Monday, June 25 2007 @ 08:49 PM EDT

ORICO provides that it is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
My bold. Hey SCOG, BSF, you paying attention to the RICO act?

RAS

[ Reply to This | # ]

IBM should hire this firm to consult on their counterclaims against SCO
Authored by: Anonymous on Monday, June 25 2007 @ 09:07 PM EDT
Not to criticise the Nazgul's expertise in any way - but these guys could
certainly introduce a bit of verve and spice to the proceedings!

If they succeed in even a fraction of their case against the RIAA (Who's bigger?
IBM themselves, Microsoft?) it would prove they could fillet an annoying little
irritant like SCO over lunch!

[ Reply to This | # ]

5.43
Authored by: red floyd on Monday, June 25 2007 @ 11:16 PM EDT
They called the school pretending to be her grandparents?????

Where the heck is the DA? If this was Joe Schmoe doing that, he'd be busted as
a potential kidnapper/stalker/child-molester.



---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Twelve days of damages?
Authored by: LaurenceTux on Tuesday, June 26 2007 @ 12:51 PM EDT
So in general if a lawyer wanted to run a full twelve days of christmas list of
damages what would serve as the "Partridge In A Pear Treee.."
phrase?

[ Reply to This | # ]

cOPYRIGHT IS A 2 ENDED STICK...
Authored by: Anonymous on Tuesday, June 26 2007 @ 01:47 PM EDT
A number of years ago, Jerry Pournelle wrote an article in Byte Magazine
concerning copyrights. He was looking at the issue from the standpoint of and
author AND computer user/geek. At the time he was questioning much of the added
layers of agreements that were added to the "shrink-wrap"
liscensing(sp) that was then common for software. As I recall, he suggested that
to be protected under copyright there are certain rules that have to be followed
closely or the copyright is invalid. #1 was that when you purchase a copyrighted
work you are allowed to posess as many copies as you then purchased. You are
allowed to keep, sell, loan out, give away, destroy any of those copies as you
see fit. You may not produce more copies of that copyrighted work. BUT the
copyright could not place further restrictions on what you did with that
legitmately aquired work, or the work would no longer have copyright protection.
SO - if I write a book and then copyright it and then sell it to you with
restrictions that say you can let no-one else read it, that I still own it even
though it is in your posession, etc. I no longer have a copyright as I have not
met the requirements under the copyright because I put other restrictions on the
work.

Is this a true interpretation of the copyright law? If so - where does that
leave the RIAA & SCO in light of the restrictions on copyright holders?

[ Reply to This | # ]

I don't understand
Authored by: rsteinmetz70112 on Tuesday, June 26 2007 @ 02:36 PM EDT
Why did RIAA drop their suit?

I guess I'll do some more digging to see it there is any reason for that, like a
judges ruling on some issue.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Tuesday, June 26 2007 @ 02:36 PM EDT
Notice she works or worked at the Justice department? Maybe they picked on
someone with some nice lawyerly contacts with a bit of principle.

[ Reply to This | # ]

I like her lawyers tactics
Authored by: Anonymous on Tuesday, June 26 2007 @ 04:18 PM EDT
Very nice. If the RIAA sticks to their investigative story they have to fight
off claims of computer fraud committed by MediaSentry and of conducting illegal
investiagations of people's private and protected property. If they claim in
court that no such violation occured, then they are practically guilty of
knowningly prosecuting her on false pretenses and of not acting responsibly in
their campaign of lawsuits. It's catch 22.

:-D

[ Reply to This | # ]

"Competition Law and Copyright Misuse"
Authored by: ak on Tuesday, June 26 2007 @ 05:26 PM EDT
It is important to note that the article does not state that there can be no criminal penalties for copyright misuse. The article is about competition law and copyright misuse and not about fraud by copyright misuse.

[ Reply to This | # ]

Count 8 (Computer Fraud and Abuse Act)
Authored by: Kenster on Tuesday, June 26 2007 @ 05:53 PM EDT
Count 8, invoking the computer fraud and abuse act, is kind of interesting.
Presumably, MediaSentry probed some computer running Kazaa and found a list of
files that looked like music files. From what I've seen, Anderson has denied
personally engaging in filesharing, and has produced a single computer which
checked out clean. But she hasn't specifically said whether she thinks
MediaSentry probed the Andersons' computer and misinterpreted the result, or
whether they probed someone else's computer entirely.

If the computer that was probed belonged to the Anderson household, then that
undermines Anderson's claims that the prosecution was unfair or malicious. On
the other hand, if the computer that was probed wasn't the Andersons', then Ms.
Anderson has no standing to question MediaSentry's probing activities.

Beyond that, they seem to be claiming that using the kazaa protocol to access a
peer for the purpose of collecting information is trespass, whereas accessing it
for some other reason like trading files presumably wouldn't be. I understand
the computer fraud act supports this kind of hair splitting, but it may not fly
as a claim. It also has an analog in the SCO case: people have been accessing
SCO's FTP server just to see what files they're distributing, and SCO has been
claiming that some of this is illegal.

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Tuesday, June 26 2007 @ 11:21 PM EDT
<i>If the computer that was probed belonged to the Anderson household,
then that undermines Anderson's claims that the prosecution was unfair or
malicious.</i>

Absolutely--NOT. It is entirely possible that the RIAA was negligent in their
use of the probing, and didn't bother to do a good job.

<i> On the other hand, if the computer that was probed wasn't the
Andersons', then Ms. Anderson has no standing to question MediaSentry's probing
activities.</i>

The grounds may again be how sloppy they were, not keeping track of what was
probed when...

[ Reply to This | # ]

RICO--if it sticks--can mean rison time right?
Authored by: Anonymous on Tuesday, June 26 2007 @ 11:24 PM EDT
<i> the RICO Act, the Racketeer Influenced and Corrupt Organization
Act.</i>

Does my memory serve me right, but isn't this the law that was often used
against the Mafia, and doesn't it mean prison, if it sticks?

What are the chances of that...?

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Wednesday, June 27 2007 @ 07:25 AM EDT
Very similar to what Direct TV has done to many victims. I know of one case
where a friend purchased a home that had a DirectTV dish and never used it. They
tried to sue him for illegally downloading their signal because he was not a
subscriber. His attorney actually advised him to pay them since his legal fess
would exceed what they were demanding. When will they get their due?

[ Reply to This | # ]

When the defendants answer
Authored by: PeteS on Wednesday, June 27 2007 @ 02:47 PM EDT
Is going to be a hoot. It's going to be SCOx all over again!

I can't wait so we can pick the bones apart ;)

Cheers

PeteS


---
Only the truly mediocre are always at their best

[ Reply to This | # ]

Tanya Andersen Sues RIAA and SafeNet (f/k/a MediaSentry) for Malicious Prosecution
Authored by: Anonymous on Wednesday, June 27 2007 @ 07:09 PM EDT
I guess Old Harry envies the RIAA guys. See my small cartoon Bye, Oliver

[ Reply to This | # ]

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