Lawsuit Could Force RIAA to Reveal Investigation Techniques

An Oregon woman whose lawsuit against the Recording Industry Association of America (RIAA) was thrown out by a federal judge last month plans to file an amended complaint  in a move that could finally force the industry group to share details about its controversial techniques for investigating alleged file sharers.

The closely watched case involves Tanya Andersen, a disabled single mother who in June 2005 was accused by the RIAA of illegally downloading and distributing copyrighted music files. The case ( Atlantic Recording v. Andersen ) was voluntary dropped by the RIAA in August 2007 amid a flurry of counter-claims by Andersen, who accused the organization of malicious prosecution, libel, negligence, invasion of privacy, electronic trespass and fraud.

After the lawsuit was dropped by the RIAA, Andersen was allowed by the court to drop her counter-claims and file them instead as a direct legal action against the RIAA. That lawsuit was filed in August 2007 and charged the RIAA and five music labels with a string of misdeeds.

Andersen's lawsuit included charges that the recording labels had used unlicensed investigators to illegally gather evidence against her and that the RIAA had violated the Racketeering Influenced and Corrupt Organizations (RICO) Act.

Andersen's suit was dismissed on February 19 by Oregon District Court Judge Anna Brown. In her ruling, Brown said that Andersen had failed to adequately state her claims for relief and gave her until March 14 to file an amended complaint clearly identifying the legal basis for each of her claims. The judge also noted that the court would not permit any more motions to dismiss the case by the RIAA.

That means if Andersen's amended complaint passes muster, the RIAA will be forced, for the first time in its pursuit of illegal music sharers, to disclose its investigative technique, according to Lory Lybeck, the Mercer Island, WA-based attorney for Andersen.

Why the Case Is Important

"We are going to have discovery," Lybeck said. "That's important because [the RIAA] has spent three years actively refusing to provide any discovery of any significance in the growing number of cases," that it is pursuing, he said. "It is very important for them to operate in secrecy because once their methodology is revealed it will be obvious they committed a crime," he said.

According to Lybeck, the amended complaint will ask the RIAA to provide details on a variety of issues including how exactly Media Sentry goes about collecting its evidence against alleged copyright infringers, when the RIAA first engaged Media Sentry to carry out such investigations, and how it decides which file sharers to sue.

Such information is likely to be of immense value to the thousands of other individuals who have been sued by the RIAA over the past three years in its aggressive campaign against alleged copyright infringers.

All of the cases have involved the RIAA providing Internet Service Providers and universities with a list of IP addresses on their networks which the organization claims were associated with illegal file sharing activities. It then demands that the institution turn over the identities of the individuals to whom the IP addresses were assigned. The individuals are then sued by the RIAA, typically on the assumption that he or she is responsible for all activity occurring with that IP address. In one such case last year , a Minnesota jury assessed damages of $222,000 against an individual named Jammie Thomas for using the Kazaa network to illegally download and distribute a total of 24 songs.

So far, the RIAA has managed to resist increasingly emphatic calls from those sued to reveal how exactly Media Sentry gathers the evidence of alleged copyright infringement. Some have charged the Belcamp, Md.-based Media Sentry with carrying out private investigations for the RIAA without being licensed to conduct private investigation, as is required in almost every state.

Others have said that Media Sentry's evidence usually only points to the existence of music files on computers and do not show how the files were originally obtained or whether the files were actually illegally shared thereafter. Concerns have also been raised about the possibility that Media Sentry might itself have illegally accessed and uploaded private confidential information not related to copyright infringement as part of its investigations.

One case that has highlighted such issues involves Arista Records LLC and 17 students at the University of Oregon . That state's Attorney General in November filed an appeal in the U.S. District Court in Oregon calling for an immediate probe of the evidence presented by the RIAA when it subpoenaed the identities of the 17 students. In a 15-page brief, Oregon's assistant attorney general, Katherine Von Ter Stegge, questioned the tactics used by the RIAA's investigators in gathering evidence against those suspected of illegal file-sharing.

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