Intellectual Property Law

A racketeering lawsuit against the Recording Industry Association of America was revived Friday, a month after a federal judge dismissed the case seeking to represent those falsely sued for copyright infringement by the record labels.

The lawsuit, filed in Oregon U.S. District Court on behalf of an Oregon woman who was wrongly accused of pilfering music via the Kazaa file-sharing network, seeks to represent thousands of people the woman's attorneys claim have been wrongly targeted by the record labels' lobbying organization.

The suit (.pdf) claims that the RIAA and MediaSentry -- the RIAA's private investigative arm that discovers file sharing by looking into peer-to-peer users' public files -- "conspired to develop a massive threat and sham litigation enterprise targeting private citizens across the United States."

Last month, U.S. District Judge Anna J. Brown tossed virtually the entire case. The judge set Friday as a deadline for the lawsuit to be amended. In February, she ruled that the 42-year-old plaintiff, Tanya Andersen,  "has not adequately stated claims for relief."

The judge said the new, amended complaint must demonstrate the RIAA has been initiating "sham" litigation unsupported by any evidence. The RIAA sues those whose IP addresses were detected sharing copyrighted music, meaning its cases likely are rooted with enough support that they might likely pass the "sham" smell test.

The case's survival

This past week, the blogosphere had been howling over how the suit could expose the RIAA's allegedly illegal tactics. Ars Technica and Wired.com's Listening Post suggested that the judge might automatically initiate what is called discovery, meaning the RIAA will have to turn over its internal records about its litigation operation, which has pursued more than 20,000 cases.

When the suit was dismissed, THREAT LEVEL cautioned and cautions again that there is no such thing as a legal slam dunk. Discovery is not a given.

So far, there's been no ruling if the case can proceed. There's no ruling demanding discovery.

Also, the judge has not decided whether the case could proceed as a class action or solely represent Andersen. That's important, and weighs heavily whether Andersen could pursue the case on her own at a cost likely to reach hundreds of thousands of dollars or more.

What's more, when Judge Brown dismissed Andersen's lawsuit last month, she cited a 2006 case in which the 9th U.S. Circuit Court of Appeals tossed a class-action lawsuit representing thousands of individuals who were sent pre-litigation letters from DirecTV. The letters, falsely or not, accused people of unlawfully hijacking the satellite carrier's signal and sought thousands of dollars in recourse. At the time, the appeals court noted that DirectTV did not engage in so-called "sham" litigation because it had reason to believe those it sent letters to were pilfering DirectTV's signal.

The allegations stemmed from DirectTV coming across a list of people who had bought the technology to unlawfully intercept the signal. The satellite carrier had no knowledge of whether its litigation targets from that list actually pilfered the television signal. Many innocent parties paid several thousand dollars to avoid litigation.

It's too early to say whether Andersen can survive that 9th Circuit ruling. The circuit is based in San Francisco, is the nation's most liberal federal bench, and covers the nine western states, including Oregon.

Andersen's suit seeks class-action status to represent "those who were sued or were threatened with suit by defendants for file-sharing, downloading or other similar activities, who have not actually engaged in actual copyright infringement." The lawsuit alleges "the class is comprised of many thousands of individuals."

In the last four years, the RIAA has sued more than 20,000 people alleging copyright infringement. The majority of them have settled for a few thousand dollars. Only one case has gone to trial, and a jury concluded the infringer should pay $222,000 for 24 songs shared on Kazaa.

The racketeering case was an outgrowth of an RIAA suit targeting Andersen.

The RIAA dropped the case against Andersen last summer for lack of evidence after concluding her hard drive didn't contain any purloined music tracks. Andersen countersued.

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