Ironic twist - RIAA sued by mom

[GeorgeR]

http://www.nj.com/news/ledger/jersey/index.ssf?/base/news-5/107708869350700.xml

 

Morris mom turns tables in music industry lawsuit

 

Wednesday, February 18, 2004

 

BY KEVIN COUGHLIN

Star-Ledger Staff

 

The music industry considers Michele Scimeca a pirate. The Morris County mom has her own term for record executives:

 

Racketeers.

 

In what legal experts described as a novel strategy, Scimeca is citing federal racketeering laws like the one that jailed mob boss John Gotti to countersue record labels that accused her in December of sharing some 1,400 copyrighted songs over the Internet.

 

The Rockaway Township woman, who claims she was targeted for her teenager's school research project, is among hundreds of individuals sued by the music industry since last summer. Another 531 computer users were sued yesterday in "John Doe" suits filed in Trenton, Atlanta, Philadelphia and Orlando.

 

Labels are using "scare tactics (that) amount to extortion" in efforts to extract settlements, Scimeca alleges in legal papers sent to the U.S. District Court in Newark.

 

"They're banding together to extort money, telling people they're guilty and they will have to pay big bucks to defend their cases if they don't pony up now. It is fundamentally not fair," Scimeca's lawyer, Bart Lombardo, said yesterday. The Cranford attorney said he occasionally downloads songs for personal use and sees nothing wrong with that.

 

The counterclaim seeks unspecified damages from Sony Music Entertainment Inc., UMG Recordings Inc. and Motown Record Co. L.P. Their lawyers in Los Angeles referred requests for comment to the Recording Industry Association of America. "We stand by our claims," the RIAA said in a prepared statement.

 

Scimeca's case appears to be the first use of federal racketeering laws in the music copyright wars, said Cindy Cohn, legal director for the Electronic Frontier Foundation, an Internet advocacy group. Most defendants are paying music labels $2,000 to $10,000 to avert costly trials, Cohn said.

 

"It strikes me as a very innovative use of the law. Very innovative," said Gregory Mark, a law professor at the Rutgers School of Law-Newark.

 

The Racketeering Influenced & Corrupt Organizations Act, or RICO, was enacted in 1970 to prosecute organized crime and help victims seek compensation. But over the years it has been invoked, with varying success, in connection with alleged conspiracies ranging from GOP fund-raising to sexual abuses by Roman Catholic clergy.

 

AT&T cited the same laws when accusing WorldCom of phone fraud. In a case that reached the U.S. Supreme Court, the National Organization for Women unsuccessfully used RICO against an anti-abortion group.

 

That case hinged on an interpretation of the Hobbs act, a 1946 law aimed at thwarting gangsters from extorting interstate truckers. Scimeca's case also cites the Hobbs act: Paying the music labels would deprive her of money she could spend on interstate commerce, her lawyer explained. Because the so-called extortion papers were delivered via the postal system, and potentially affect Scimeca's bank account, her countersuit also cites mail - and bank fraud laws.

 

In December, the labels produced 41 pages of copyrighted songs from Pearl Jam, Korn, Godsmack and other artists, which they said were offered for illegal swapping over the KaZaA network by "DrEeMeR."

 

Scimeca told The Star-Ledger that was the screen name used by her 13-year-old daughter, a high school freshman, for a school project. But the family's Optimum Online Internet account was registered to the mother, whose name was handed over by Cablevision. An unrelated court ruling recently made such information harder for labels to obtain. So now they are filing John Doe lawsuits based on Internet addresses.

 

Scimeca said at the time that she and her husband could not afford copyright penalties of up to $150,000 per song. "Ignorance of the law is not a defense," admonished the notice she got from the labels' lawyers, who added that Scimeca's liability was clear and she should consider settling.

 

Scimeca's case may raise a valid question: Can labels take collective action against file-swappers? But her lawyer must convince U.S. District Court Judge William Martini that it merits a jury trial, said Mark, the Rutgers professor. "The hurdle is getting to a jury," Mark said.

 

A group in California tried using the RICO law to stop DirecTV from threatening people it suspects of stealing satellite services. But the company successfully argued its letters were protected free speech under a state law, said Jennifer Stisa Granick of Stanford University's Center for Internet & Society.

[Mr. Phil]

SCREW THE RIAA!!

(it was on someones sig...forgot who)

[hags2k]

very interesting. I am anxious to see how this turns out.

 

While I don't condone music file swapping (if you like the music, support the artist. I LOVE music, and I really want the bands, artists, and groups I like to continue doing what they are doing), I think that what the RIAA is doing truly is criminal, and I hope that this works out. The RIAA needs to learn that it can't count on the legal system to fix all it's problems it couldn't fix itself through it's own actions. Or, better yet, simply show them that treating your customers like dirt is bad business, and doesn't pay.

 

Thanks for posting the article.

[g.]

Nothing's wrong with swapping stuff that it's owners have said "Go! Share!" about. That's not so much different than bands in the past that have said they encourage live taping.

 

But the RIAA really never cared about musicians or intellectual property rights. They just wanted to control the flow and the dough.

 

Musicians really have to take control of the distribution their own creations as much as is practical. If they don't it'll be cheezy little ripoff artists like someone I could point to givi9ng them the death of a thousand cuts, or the RIAA giving them the royal ream.

[dcr]

It will be interesting to see how it pans out. Myself, I doubt she'll get very far. It would be a very strange precedent indeed to rule that giving someone the choice either to be sued lawfully or to settle out of court, is a form of extortion. So I don't get it. Then I'm no lawyer either.

[surfmonkey]

Originally posted by GeorgeR:

The Cranford attorney said he occasionally downloads songs for personal use and sees nothing wrong with that.

???

 

What planet do these people live on?

 

And, 1,400 songs for a school project? The whole thing sounds like a bunch of B.S.

 

I think I'll file a suit against Mrs. Scimeca for clogging up our court system with a totally frivolous law suit.

[doc taz]

Originally posted by Mr. Phil.:

SCREW THE RIAA!!

(it was on someones sig...forgot who)

The Jeebus dude had that going for a while. He's the one that occasionally uses pics of John Turturro as a bowler from some movie. His avatar now is delish.

[Mr. Phil]

yea... "that movie" just happens to be THE BIG LEBOWSKI!!!!!

[The Fonz]

wow. as a musician i still have to sort out my opinions on filesharing. as for the riaa lawsuits, those are just wrong. i have to agree with this woman in that it's extortion to say "we're going to sue you for $150,000 for that song you downloaded unless you pay us $2000 - $10000." i would also like to know where that money goes. if a least a portion of it isn't going to the artists then these lawsuits need to be criminalized.

[Afro_Man]

I love that movie, so good. I used to file share music and stuff but i stopped when someone got sued, its a bit silly if the band say its ok but then the people get in trouble anyway, i know someone who got a bit of a telling off from the downloadie for downloading smashing pumpkins songs from the album Machina part two, which was only released on the bloody internet! Arggg they should try and do something to sort it out, i dunno what but they have all the money, as the saying goes, you have to spend money to make money.

Nic

[prophetgtree]

As a musician, I think I should be paid for my music. Then again, I think I should be paid for my music, not some guys who sits in an office. I agree that the RIAA needs to share this money with the bands, I don't know if that's the case or not, but it sounds reasonable.

 

What if I was a major recording artists and said I allowed my songs to go through filesharing? Would the RIAA overrule that? With my songs?

 

Damn those CD prices too! Of course free is better than 13 or 14 bucks, but 18 or 20 for a single CD?! I don't file share, but I would be much more inclined to go buy a CD if I wasn't going to have to whore myself just to get a few!

[jreed]

In my opinion, I do believe the artist should get paid for their work. And I do believe in supporting bands and artist that you like.

My beef, why is it so to download a couple of songs to see if you like band? I'm not going to go spend 15 bucks on a band I have never heard. Thats stupid. But, If I listen to a couple of songs and go "Wow, these guys rock" then I'm going to go spend the cash for the full album. Plus, bands get alot of support from live shows. If I like a band, I'm gonna go see them when I can.

And I serious doubt the bands are seeing any of the money from these lawsuits.

[Adamixoye]

What really needs to happen is for someone to take the RIAA to task over "fair use". If you ask me, that's where the initial ruling was wrong. Check out this webpage . Assuming this guy has this facts straight, I draw your attention to the following passage:

 

"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." -- US Code, Title 17, Chapter 10, Subchapter D, Sec. 1008 (also see its legislative history).

 

You could tape away to your heart's content as long as you weren't doing it for money. You could make a tape for your friend, even an analog tape that wasn't subject to the new tax.

 

Napster tried to defend itself under Section 1008. Its users were sitting at home making audio recordings for personal use. They got slammed by the courts because the devices being used, desktop PCs, were held to be not covered by this statute, i.e., a PC is not a "digital audio recording device".

Look, whatever you think about the fairness of filesharing and whether the artists should be paid for their work, etc., this ruling is absolutely retarded. A PC is not a digital audio recording device? Come on now. As far as I'm concerned, filesharing should be legal according to the fair use laws on the books, and only aren't because of this ridiculous court ruling. If you think the fair use laws should be changed, then that's a different argument. But right now, the courts are failing to correctly apply the fair use laws that are on the books.

[R.S.M]

according to my calculations there wanting to sue for 150,000.you divide that by 20 bucks for a cd, thats 7,500 cds, times that by 10 for 10 songs for a cd equalls 75,000 songs,she only downloaded 1,400 songs why such a big law suit.If it was for 2,800 bucks i would under stand (1400songs divided by 10songs on cd =140 cds x 20bucks for a cd =2,800.

 

Ya damn right she should sue i can even see a class action comming.I hope she put em out of business.The musical revolution is comming all independent.The technology is here.

[bc_dup1]

How does the legal situation work in the US?

 

As I understand it in UK law if successfully sued you'd have to compensate for economic loss suffered by the royalty holder. I think you could argue that loss had only been suffered on a percentage of downloads, because people tend to download stuff they would not otherwise buy, or might go on to buy anyway. So what would be the royalties on 1,400 downloads? Say a few hundred pounds?

 

So what's the basis for suing people for tens of thousands of dollars in the US?

[ClarkW]

bc - There are a couple of different types of "damages" you can sue for. They go by various names depending on the type of suit, but they can be grouped in a number of ways. Briefly:

 

Actual - If you stole something worth $1000, it would be $1000. If you beat someone up and they had $10,000 of medical bills, it would be $10,000. If you burned down a house worth $100,000, it would be $100,000. Actual damages generally have no fixed upper limit.

 

Compensatory - If you're a breadwinner and you are crippled (or killed) in an accident, you or your benefactors could sue for future lost wages over your lifetime because you can't work. Sometimes this is where the Emotional Trauma stuff also gets thrown in, where people claim that it caused them $100 million dollars of emotional damage to watch their loved one suffer and die of lung cancer from smoking or something. This is also the type of damage that the RIAA would likely be suing people for on top of any "actual" damages. They might not be able to quantify the actual damages, such as how many people might have downloaded the songs from the alleged file-sharer, so they come up with a magic number that they think is proper recompense for what they might possibly have lost due to your actions.

 

Punitive - This is where fines and wrist-slapping comes in. It's to remind you to not be so careless in the future by hitting you in the pocketbook. This is where the government makes tobacco companies donate money for anti-smoking campaigns, etc.

 

I'm not a lawyer, but that's basically the gist of it.

[bc_dup1]

OK, this still seems (largely) compensation for economic loss. I don't think the concept of punitive damages has an equivalent here (although I'm not a lawyer so if anyone knows different please correct me).

 

What seems to be being suggested, though, is that the record companies can come up with a fanciful estimate of economic loss and shift the burden of disproving that estimate to the downloader? I'd have thought in the UK the burden of proof that economic loss had been suffered would be with the person suffering the loss.

 

If companies with deep pockets are threatening to sue people for damages based on a huge multiple of their economic loss, and those individuals feel they must settle for a smaller but still punitive multiple because they can't afford to fight, then I do think that is extortion.

[hags2k]

Originally posted by bc:

What seems to be being suggested, though, is that the record companies can come up with a fanciful estimate of economic loss and shift the burden of disproving that estimate to the downloader? I'd have thought in the UK the burden of proof that economic loss had been suffered would be with the person suffering the loss.

 

If companies with deep pockets are threatening to sue people for damages based on a huge multiple of their economic loss, and those individuals feel they must settle for a smaller but still punitive multiple because they can't afford to fight, then I do think that is extortion.

Good point about "burden of proof". I don't know how it works in civil suits, but I know for sure that the burden of proof rests on the state (the accuser) in criminal cases. I think/hope this applies in civil cases, as well.

 

Your last statement, as well, I think sums it up quite nicely. Flexing legal muscle in this way, I think, can be considered extortion. Pay us not to make you pay more? C'mon. Seriously.

 

There are lots of other issues that can be discussed here, like intellectual property, what it means to "own" a cd, etc. However, in situations like these, at least in private discussion, I think there is a major temptation to bring lots of arguments in that are not immediately relevant, and thus cloud the issue. This particular legal practice, I believe, is just as unprecedented as this woman's countersuit. Can anyone else remember a time when any major commercial entity sued so many "regular joes" for such huge damages like this?

 

Anyway, like I said earlier, I'm curious to see how this plays out.

[Lugsailer]

The unrelated court ruling that makes it harder for record comanies to go after your information is actually where this story begins. It goes like this.....

You cannot use a computer without using the phone lines. You cannot know what I do over my phone lines without a warrant. Period. If you know what I do over my phone lines it means you have tapped my phone lines and illegal phone taps are just that, illegal. The case you cited stated just that back in November by an irate woman in NYC who had the guts to actually charge the recording industry.

You see, you are given the rights and privlages shpeel when you sign up for the internet. You cannot do anything illegal through your computer by your agreement, however, this does not mean you give up your rights. Also, the rights and privlages shpeel is just an exculpatory clause anyway. You can't use a compter without a provider, just like you can't go into an amusement aprk without buying a ticket which says you have no rights printed on the back of the ticket. Of course you have rights and judges rightly throw these clauses out as exculpatory. It just scares people out their rights

But, being a musician and a law abiding citizen I don't believe you should download music on principal, i.e., until the law changes or a court says what needs to be said.

[JohnS]

Originally posted by Lugsailer:

You cannot use a computer without using the phone lines. You cannot know what I do over my phone lines without a warrant. Period. If you know what I do over my phone lines it means you have tapped my phone lines and illegal phone taps are just that, illegal.

What about people who are not hooked up to the internet through phone lines? People with cable and wireless hookups?

 

I doubt very much that this case will go very far.

 

BTW I am against illegel downloading as much as I am against having my privacy invaded.