Lawsuit could force American recording industry body to reveal investigation techniques

The hunted becomes the hunter in a US legal case

A US 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 US Racketeering Influenced and Corrupt Organizations (RICO) Act.

Andersen's suit was dismissed on February 19 by US 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 US-based attorney for Andersen.

"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.

Page Break

How do they do it?

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 US jury assessed damages of US$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 US-based Media Sentry with carrying out private investigations for the RIAA without being licensed to conduct private investigation, as is required in almost every US 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 and 17 students at the University of Oregon. That state's Attorney General in November filed an appeal in the US 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.

Page Break

Of accusations and eight-year-olds

Andersen's planned motion to file an amended complaint continues a saga that began with the RIAA's suit in 2005. From the beginning Andersen claimed her non-involvement in any of the alleged copyright infringement activity that the RIAA claimed she had indulged in. According to Lybeck, she voluntarily allowed the RIAA to examine the contents of her hard drive to prove her innocence and later had to ask the court to order the RIAA to reveal its findings. When the RIAA found no evidence against Andersen on the hard disk she had provided for inspection, they still refused to drop their suit and instead claimed that she might have used another computer for the alleged file sharing, Lybeck said.

They even deposed Andersen's daughter -- who was eight years old at that time -- in the case, as well as some of Andersen's relatives and friends. Lawyers representing RIAA in the case tried several times to reach Andersen's daughter directly, Lybeck claimed; at one point someone posing as Andersen's mother phoned the school in an apparent attempt to speak with her daughter, he said.

According to Lybeck, Andersen appears to have been a victim of mistaken identity. Lybeck said the RIAA appears to have known at some point that an online pseudonymous name that they had associated with Andersen in the copyright infringement case was, in reality, being used by a US-based carpet installer. Despite knowing this, they appear to have gone after Andersen in what Lybeck said was an apparent bid to get her to drop her charges against the RIAA in return for them dropping their charges against her.

"We knew they had no information," Lybeck said. So as soon as it was procedurally to file a motion in court for summary judgment Andersen did so, he said. According to Lybeck, the RIAA delayed responding to that move for over a month. [At the point at which] they had to provide information, they provided a motion of dismissal of their case. "They quit after more than two years of harassing Tanya," he said.

Referring to the planned lawsuit, Lybeck said the amended compaint "adds the specificity that the judge asked for" back in February.

It also seeks an injunction immediately stopping RIAA from continuing with its "illegal investigations" of alleged music file sharers. "We are seeking compensation for all that she has been put through by the RIAA," Lybeck said.

"We are seeking class action certification so that other individuals who have been harassed and intimidated by the RIAA can also receive compensation," Lybeck added.

Cara Duckworth, director of communications for the RIAA, offered a brief e-mailed statement in response to a request for action on Friday's pending move by Andersen. "It is unfortunate that this case continues to drag on after the Court previously deemed all of Ms. Andersen's claims inadequate," Duckworth said, adding, "We hope to resolve the case in short order."