p2pnet - rss feed: Tanya, ‘gotenkito’ and the RIAA
p2pnet.net news:- Yesterday we highlighted the continuing RIAA (Recording Industry Association of America) attack on Tanya Andersen, a disabled Oregon mother with a 10-year-old daughter named Kylee.
Tanya is accused of being one of those thieving, file sharing criminals the RIAA says are costing its masters, Warner Music, EMI, Vivendi Universal and Sony BMG, vast amounts of money in lost revenues, and it wanted to grill Kylee in the hope it’ll be able to get something out of her which’ll incriminate her mother.
However, as she’s said from the beginning, Andersen hasn’t done anything, let alone infringe someone’s copyright, the real nature of the alleged offence wrongly and incorrectly called a ‘crime’.
According to the RIAA, Andersen is/was also gotenkito (gotenkito@kazaa.com), an avid rapp lover who was out of bed well before the crack of dawn, illegally distributing music online.
‘Who’s gotenkito?’ - Andersen wondered. ‘Because it sure isn’t me.’
So she googled it and within five minutes, found someone calling himself ‘gotenkito’, hailing from near-by Washington state. Not only that, he admitted downloading entertainment content.
Andersen had never heard of him and she told the RIAA about her discovery, begging them to investigate.
But the RIAA didn’t want to know.
Andersen has already named the RIAA in a RICO suit, and she and her lawyer, Lory Lybeck, also lodged counterclaims of Electronic Trespass, the Computer Fraud and Abuse Act, Invasion of Privacy, Fraud, Negligent Misrepresentation, the tort of Outrage, and Deceptive Business Practices under Oregon Trade Practices Act, says Recording Industry vs The People.
Predictably, the RIAA is trying to have the claims dismissed and in their Memorandum of Law In Opposition to Motion to Dismiss Counterclaims, Andersen and Lybeck state >>>>>>>>>>>>>>>>>>>>>>>>>>>>>
INTRODUCTION
Defendant has sufficiently pleaded her counterclaims and plaintiffs’ motion must be denied. The first five substantive pages of plaintiffs’ memorandum in support of its motion demonstrate that the motion is based on unsupported facts foreign to the pleadings and that plaintiffs untimely seek imposition of summary judgment. Plaintiffs’ motion is not only without support of admissible evidence, it is premature. For these reasons alone, plaintiffs’ motion must be denied.
The other apparent purpose of plaintiffs’ lengthy and inappropriate unsupported discussion supports defendant’s counterclaims. Plaintiffs seem to argue that their ‘means’ should not be questioned because their ‘end’ is to protect their financial interest in their virtually complete monopoly of worldwide music distribution. Plaintiffs have known that Ms. Andersen did not download music as alleged and she has been treated like collateral damage in the ill-advised war plaintiffs persecute against her.
As this court knows, for a number of years, a group of large, multinational, multi-billion dollar record companies, including these plaintiffs, have been abusing the federal court judicial system for the purpose of waging a public relations and public threat campaign targeting digital file sharing activities. As part of this campaign, these record companies (and their lobbying group the RIAA,) retained MediaSentry to illegally investigate and purportedly invade private home computers and collect personal information. Based on private information allegedly extracted from these personal home computers, the record companies have reportedly filed lawsuits against perhaps 30,000 citizens.
These cases start with the filing of anonymous ‘John Doe’ lawsuits. These are filed for the sole purpose of information farming and specifically to harvest personal addresses from internet service providers. Docket #112, Counterclaims, ¶2.
After an individual’s personal information is harvested, it is given to the record companies’ representatives and the anonymous ‘John Doe’ information farming suits are then typically dismissed. Id., ¶3
The record companies provide the personal information to another of their agents in this common enterprise, the ‘Settlement Support Center’, which engages in illegal, prohibited and deceptive debt collection activities and other illegal conduct to extract money from the people allegedly identified from the secret lawsuits. Most of the people subjected to these secret suits do not learn that they have been ’sued’ until demand is made for payment by the record companies’ lawyers or Settlement Support Center. Id., ¶4
Tanya Andersen is a 42-year-old single mother of an eight-year-old daughter living in Tualatin, Oregon. Ms. Andersen is disabled and has a limited income from Social Security. Id., ¶5
Ms. Andersen has never downloaded or distributed music online. She has not infringed on any of plaintiffs’ alleged copyrighted interest. Plaintiffs know that their allegations are not true and that Ms. Andersen did not engage in the conduct they allege. They continue to persecute her in the prosecution of this action as part of an organized scheme to intimidate her in an effort to publicize their anti-downloading public relations campaign. Id., ¶6
Since February 2005, Tanya Andersen has been trying to get the record companies to do one thing: look at her computer so that this nightmare will end. The record companies have been wrongfully accusing Ms. Andersen of downloading and sharing music online. Ms. Andersen, who lives off of a fixed income from Social Security and has no ability to pay to defend a lawsuit, offered her computer to the record companies to inspect before this lawsuit was ever filed. The record companies have refused to look at her computer. Ms. Andersen has never downloaded or distributed music online. She has not infringed on any of plaintiffs’ alleged copyright interests. She has nothing to hide. The record companies have harassed her without doing any reasonable inquiry. They have clearly sued the wrong person. Id., ¶7
Ms. Andersen has been the victim of the record companies’ public threat campaign. The threats started when the record companies falsely claimed that Ms. Andersen had been an ‘unnamed’ defendant who was being sued in federal court in the District of Columbia. She was never named in that lawsuit and never received service of a summons and complaint. Id., ¶8
Neither did Ms. Andersen receive any timely notice that the suit even existed. That anonymous suit was filed in mid-2004. Ms. Andersen first learned that she was being ’sued’ when she received a letter dated February 2, 2005, from the Los Angeles, California, law firm Mitchell Silverberg & Knupp, LLP. The L.A. firm falsely claimed that Ms. Andersen had downloaded music, infringed undisclosed copyrights and owed hundreds of thousands of dollars and that ‘[t]he evidence necessary for the record companies to prevail in this action has already been secured.’ Ms. Andersen was understandably shocked, fearful, and upset. Id., ¶9
After receiving the February 2, 2005 letter, Ms. Andersen contacted the record companies’ agent and ‘representative,’ which turned out to be Settlement Support Center, LLC. This company was formed by the record companies for the sole purpose of coercing payments from people who had been identified as targets in the anonymous information farming suits. Settlement Support Center is a Washington State phone solicitation company which engages in debt collection activities across the country. Id., ¶10
When Ms. Andersen contacted Settlement Support Center, she was advised that her personal home computer had been secretly entered by another record company agent: MediaSentry. Id., ¶11
Settlement Support Center also falsely claimed that Ms. Andersen had ‘been viewed’ by MediaSentry downloading ‘gangster rap’ music at 4:24 a.m. Settlement Support Center also falsely claimed that Ms. Andersen had used the login name ‘gotenkito@kazaa.com.’ Ms. Andersen does not like ‘gangster rap,’ does not recognize the name ‘gotenkito,’ is not awake at 4:24 a.m. and has never downloaded music. Id., ¶12
Settlement Support Center threatened that if Ms. Andersen did not immediately pay them, the record companies would bring an expensive and disruptive federal lawsuit using her actual name and they would get a judgment for hundreds of thousands of dollars. Id., ¶13
Ms. Andersen explained to Settlement Support Center that she had never downloaded music, she had no interest in ‘gangster rap,’ and that she had no idea who ‘gotenkito’ was. Id., ¶14
Ms. Andersen wrote Settlement Support Center and even invited an inspection of her computer to prove that the claims made against her were false. Id., ¶15
An employee of Settlement Support Center asked Ms. Andersen to help plaintiffs by investigating who could have used her computer or Internet Protocol (IP) address to engage in any of the alleged acts of infringement. Relying on the information provided by Settlement Support Center, Ms. Andersen invested substantial time and resources finding information for plaintiffs’ benefit. Id., ¶16
In response to the information that Ms. Andersen had provided, an employee of Settlement Support Center admitted to Ms. Andersen that he believed that she had not downloaded any music. He explained, however, that Settlement Support Center and the record companies would not quit their debt collection activities because to do so would encourage other people to defend themselves against the record companies’ claims. He stated that plaintiffs did not care whether Ms. Andersen had actually engaged in the alleged infringing activity or not—Ms. Andersen would have to pay thousands of dollars to the record companies immediately, or else she would be subjected to an expensive and intrusive federal lawsuit. The Settlement Support Center employee stated that regardless of whether she had infringed any copyrights, plaintiffs could force Ms. Andersen to pay thousands of dollars by filing a lawsuit. Id., ¶17
Ms. Andersen was understandably shocked and upset. In a telephone call with Settlement Support Center in late February 2005, Ms. Andersen offered to provide her computer for inspection before plaintiffs filed any lawsuit and caused her to incur substantial unnecessary costs and additional distress. Ms. Andersen specifically told plaintiffs that their conduct had caused her to suffer a painful medical condition for which she had sought treatment. When she did not receive a response, Ms. Andersen followed up with a letter to Settlement Support Center dated March 6, 2005, in which she asked plaintiffs to inspect her computer to prove that the claims made against her were mistaken:
‘Like I have said several times in this letter, I am innocent from doing what is being alleged. No one in my household has done this either. If there is a way to prove this by looking at my hard drive or something and someone from your agency would like to do that, I have nothing to hide.’
Id., ¶18
Settlement Support Center insisted that Ms. Andersen’s lack of involvement was irrelevant and that the record companies would sue her for hundreds of thousands of dollars whether or not she was actually engaged in the file sharing of music recordings: It didn’t matter who did the downloading, she was going to have to pay. Plaintiffs’ further threatened that unless Ms. Andersen paid thousands of dollars immediately, they would subject her to an extensive and costly lawsuit. Id., ¶19
Instead of investigating, the record company plaintiffs filed this suit against Ms. Andersen. Id., ¶20
Unbelievably, with internet research requiring perhaps 5 minutes on Google, Ms. Andersen located a man who uses the ‘gotenkito’ screen name and who admitted to downloading entertainment content from the internet. Ms. Andersen does not know this man. Ms. Andersen supplied this information to the plaintiffs and begged them to investigate, hoping that their persecution of her would end. It did not. See Docket #107.
Despite their knowledge of her innocence, plaintiffs persist in making false representations to Ms. Andersen that they possess evidence of her infringement. Plaintiffs know that they have no factual support for their claims. When this complaint was filed, the record companies knew that their investigation could not identify who had committed any of the alleged acts of infringement; they knew that that there was no evidence that the files allegedly detected were sound recordings; and knew that that the investigation protocol they employed had lead to multiple mistaken identifications in the past. They knew that neither Ms. Andersen nor her 7 year old daughter had no interest in the repugnant, racist and woman-defiling lyrics contained in the ’songs’ she is alleged to have downloaded. Id., ¶21
Ms. Andersen’s case represents especially abusive circumstances. However, other courts have recognized the inadequacy of plaintiffs’ tactics in support of legal claims. In BMG Canada Inc. v. John Doe, 3 F.C. 241 (No. T-292-04 2004), the Canadian Federal Court ruled that the investigation protocols used by the record companies in these cases are so deficient, that the ‘evidence’ gathered fails to establish even a prima facie case of infringement. Id., ¶22
MediaSentry’s president, Gary Millen testified in a deposition given in that case that merely identifying the assigned owner of an IP address cannot identify who was engaged in the alleged file sharing activities because multiple people can be using a single IP address at once and MediaSentry cannot rule out whether any IP address that it traces had been hijacked or spoofed by unknown persons. Id., ¶23
Millen admitted that MediaSentry’s investigation protocol cannot actually identify the person responsible for the suspected infringement. Id., ¶24
Millen testified that the investigation cannot verify whether the program files identified in the screen shot exhibits are copies of actual sound recordings or program files that look like they might be a sound recording by virtue of their name, title, or other description. Id., ¶25
In Brein et al v. UPC Nederland B.V. et al., No. 194741/KGZA-05-462/BL/EV at 4.30-31 (2005), a Dutch court ruled that that MediaSentry’s investigation protocol (providing a list of file names, IP address, and date and time of detection) was insufficient to state a claim for copyright infringement because the record companies were unable to identify what person was using the detected computer and which computer contained the allegedly infringing files. Id., ¶26
In Ms. Andersen’s case no downloading or distribution activity was ever actually observed. None ever occurred. As plaintiffs know, Ms. Andersen’s Verizon account was inoperable on the date they claim to have invaded her computer. They also know that ‘gotenkito’ is a man who lives in Everett, Washington. Regardless, the record companies actively continue their coercive and deceptive debt collection actions against her. Ms. Andersen was falsely, recklessly, shamefully, and publicly accused of illegal activities in which she was never involved. Id., ¶27
Ms. Andersen has been forced to defend against this frivolous and damaging lawsuit for over 1 ½ years. During this time, Ms. Andersen and her attorneys have repeatedly requested that plaintiffs inspect her computer to confirm that she had not engaged in downloading activities. Id., ¶28
After the case was stayed and the court entered an order for inspection of the computer, Ms. Andersen’s computer hard drive was copied and a mirror image was evaluated by a neutral expert and plaintiffs’ own paid expert in August 2006. Id., ¶29
After inspection of the computer hard drive, plaintiffs first refused to disclose the results of their expert’s evaluation until the court ordered them to do so in October 2006. Id., ¶30
Even after they were ordered to provide specific information regarding their expert’s evaluation, plaintiffs still have refused to identify any evidence on the hard drive supporting claims of downloading activities or infringement. No evidence exists. Still plaintiffs continue to persecute Ms. Andersen. Id., ¶31
There has never been any evidence to support plaintiffs’ claims in this case. Plaintiffs and their lawyers are aware that no evidence exists. Plaintiffs started and continue to pursue these claims in violation of law, FRCP 11 and to Ms. Andersen’s ongoing injury and harm. Id., ¶32. Ms. Andersen truly is a collateral casualty in plaintiffs’ illegal war being waged in federal courts across the entire country.
LEGAL ARGUMENT: TANYA ANDERSEN HAS ASSERTED AGAINST THE PLAINTIFFS COMPENSABLE CLAIMS ARISING UNDER EACH STATED CAUSE OF ACTION
A - Applicable Standards
A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) may not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In ruling on such a motion, ‘the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.’ Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The complaint need not set out the facts in detail; what is required is a ’short and plain statement of the claim showing that the pleader is entitled to relief.’ Fed.R.Civ.P. 8(a); La Salvia v. United Dairymen, 804 F.2d 1113, 1116 (9th Cir.1986).
Considering these onerous standards necessary for dismissal at the pleadings stage of litigation, the court must deny plaintiffs’ motion to dismiss each count of Ms. Andersen’s counterclaim, respectively, for the reasons discussed below.
B - Ms. Andersen has Adequately Pleaded the Elements of a Claim for Electronic Trespass
Federal courts have recognized the applicability of the traditional trespass to chattels tort to the appropriation and use of computer technology without the owner’s consent. In CompuServe Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D. Ohio 1997), the court held that the defendant’s massive deployment of ’spam’ email would give rise to a trespass claim on the part of the plaintiff email service provider. Noting the damage suffered in the form of the drain upon the plaintiff’s computer memory resources caused by the defendant’s mass emails, which made the plaintiff’s services less useful to customers, the court, in response to defendant’s argument that the plaintiff had consented to its use of the email service by connecting to the internet, held that the defendant’s acts had nonetheless exceeded the scope of the consent. ‘The use of personal property exceeding consent is a trespass.’ Id., at 1024 citing City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F.Supp. 1273 (E.D.N.Y.1995); Restatement (Second) of Torts § 256.
As the 9th Circuit explained in Theofel v. Farey-Jones, 359 F.3d 1066, 1073 (9th Cir. 2004):
A defendant is not liable for trespass if the plaintiff authorized his entry. See Prosser & Keeton § 13, at 70. But ‘an overt manifestation of assent or willingness would not be effective … if the defendant knew, or probably if he ought to have known in the exercise of reasonable care, that the plaintiff was mistaken as to the nature and quality of the invasion intended.’ Id. § 18, at 119; cf. Restatement (Second) of Torts §§ 173, 892B(2). Thus, the busybody who gets permission to come inside by posing as a meter reader is a trespasser. J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, 44 F.3d 1345, 1352 (7th Cir.1995). So too is the police officer who, invited into a home, conceals a recording device for the media. Cf. Berger v. Hanlon, 129 F.3d 505, 516-17 (9th Cir.1997), vacated, 526 U.S. 808, 119 S.Ct. 1706, 143 L.Ed.2d 978 (1999), reinstated in relevant part, 188 F.3d 1155, 1157 (9th Cir.1999).
Here, the record company plaintiffs employed MediaSentry as their agent allegedly to break into Ms. Andersen’s personal computer and to secretly spy on and steal information or remove files from that computer. In doing so, the record companies allegedly willfully used Ms. Andersen’s computer without authorization to appropriate her personal property and information for their own purposes. Plaintiffs’ alleged unauthorized invasion and use of Ms. Andersen’s computer constituted an interference with the capacity and integrity of her personal property. MediaSentry was not licensed in Oregon or elsewhere to engage in the conduct plaintiffs allege to have occurred. Neither did MediaSentry have Ms. Andersen’s permission to inspect, copy, or remove private computer files.
While Ms. Andersen denies ever utilizing the KaZaA program to share or download any music files whatsoever, even assuming, arguendo, that some third party had used her computer to do so, the scope of consent to access her computer files impliedly granted to other users would not include the invasive acts committed by plaintiffs’ agents.
Very recently, Dr. Douglas Jacobsen, plaintiffs’ primary ‘expert’ in their abusive lawsuit enterprise, gave deposition testimony in the matter of UMG Recordings, Inc. et al v. Lindor, 05 CV 1095 (E.D.N.Y.) concerning his use of MediaSentry materials to investigate alleged copyright infringement on behalf of the RIAA member companies. Dr. Jacobsen asserted in the Lindor case that he could prove that music found on the defendant’s computer had been downloaded from the internet, using ‘metadata tags’ displayed in MediaSentry user logs. See transcript of February 23, 2007 deposition of Dr. Douglas Jacobsen, at 96:2 to 97:4. MediaSentry’s materials feature technical data that is nearly incomprehensible without attendant explanation. For example, when asked about how he was able to determine that the defendant’s computer, as opposed to other networking devices, was accessing the internet at the time of the investigation, Dr. Jacobsen testified that his conclusion was based on ‘MediaSentry traffic captures which shows the IP address of the actual computer and the IP address of the packet in transition across the internet…’ Id., at 62:8 to 64:9.
A KaZaA user could reasonably expect that another user might view the contents of his or her shared file folder and download files. However, no user has or would consent to an unknown investigator’s posing as a peer interested in sharing files and instead surreptitiously creating data logs including ‘metadata tags’ and ‘traffic captures’. This type of pretext is illegal. MediaSentry’s sophisticated technological capabilities, use of false pretenses, and pernicious motives make it entirely different from the average peer-to-peer network user. It cannot be fairly said, as plaintiffs assert, that it ‘does not do anything that any other user of a P2P network cannot do’. MediaSentry’s activities are illegal and plainly exceed the boundaries of consent relative to file sharing and thus constitute trespass.
Contrary to plaintiffs’ argument, the alleged intrusion by MediaSentry into Ms. Andersen’s personal computer has caused her damages sufficient for a trespass claim in accordance with §218 of the Restatement Second of Torts and applicable Oregon case law. As a direct result of plaintiffs’ interference with the integrity and capacity of her personal computer, Ms. Andersen has invested substantial time, emotion and resources into investigating the integrity of her computer and the allegations of infringement at the insistence of the record companies. She is also chilled against making lawful use of her computer to access the internet for fear of further invasion and harassment by plaintiffs. This constitutes impairment to the quality and value of Ms. Andersen’s personal computer under §218(b).
Plaintiffs’ conduct has also caused Ms. Andersen’s medical and psychological condition to become much worse and her symptoms to flare up, requiring that she return to her doctor resulting in her to be unable to return to work. This gives rise to damages for bodily harm under §218(d).
For these reasons, Ms. Andersen’s claim for electronic trespass must stand.
C - Ms. Andersen has Adequately Pleaded the Elements of a Claim under the Computer Fraud and Abuse Act.
As plaintiffs’ brief acknowledges, the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, gives rise to a civil action when, as result of a party’s conduct proscribed by the Act, a person suffers losses in excess of $5,000. See 18 U.S.C. § 1030(a)(5)(B)(i). As discussed above with respect to the trespass claim, Ms. Andersen has suffered damages as a result of plaintiffs’ conduct, and while the amount of damages has not yet been formally tabulated, it certainly exceeds $5,000.
Plaintiffs argue that any civil claim arising under the Act requires the access of another’s computer without authorization, citing Theofel, supra, 359 F.3d 1066.
What plaintiffs here do not acknowledge is that the 9th circuit in Theofel found that the claim of the plaintiffs therein for a violation of the CFAA was actionable and the appeals court reversed the district court’s decision to dismiss that claim. Ibid. In Theofel, the plaintiffs alleged that the defendants violated the Act by issuing to the plaintiffs’ ISP an overbroad and unlawful subpoena that resulted in the disclosure of personal and privileged emails as part of a ’sample’ package of emails turned over by the ISP. The defendants argued that plaintiffs’ ISP had ‘authorized’ their accessing the emails by voluntarily responding to the subpoena, but the appellate panel disagreed, holding that consent was vitiated due to the defendants’ drafting and deploying a plainly invalid subpoena, an act the court considered to be ‘in bad faith’ and constituting ‘gross negligence’. See id., at 1073-1075.
The court pointed out that the deceptive nature of the subpoena was an independent basis for invalidating consent:
The subpoena may not have been coercive, but it was deceptive, and that is an independent ground for invalidating consent. See Restatement (Second) of Torts § 892B(2)-(3). It was a piece of paper masquerading as legal process.
Theofel, 359 F.3d at 1074.
Here, as discussed supra, Ms. Andersen never authorized plaintiffs’ investigators to access her computer, either impliedly or expressly. Assuming for the sake of argument that the mere existence of a KaZaA shared file folder on one’s computer constitutes consent for peers to view and download the contents of a file, by using pretext, acting deceptively and masquerading as a peer user, using false pretenses, and employing sophisticated data collection technology, plaintiffs’ acts vitiated whatever implied consent they might have had, giving rise to a claim for violation of the CFAA.
D - Ms. Andersen has Properly Pleaded the Elements of Claims for Invasion of Privacy
1. Intrusion Upon Seclusion
Plaintiffs again argue, without any basis, that Ms. Andersen was ‘publicly distributing files over the internet’, and therefore had no expectation of privacy in her personal computer and the information it contained. As is set forth above, Ms. Andersen has consistently denied such activity without any evidence to the contrary, and thus maintained a very reasonable expectation that anonymous unlicensed, illegal ‘cyber-sleuths’ would not invade her personal computer using pretext and under false pretenses. Thus, the cases cited by plaintiffs for the proposition that a computer user effectively ‘waives’ her expectation of privacy by engaging in peer-to-peer file sharing are inapplicable to Ms. Andersen’s situation. See, e.g., In re Verizon Internet Services, Inc., 257 F.Supp.2d 244 (D.D.C. 2003).
Further, as discussed supra, even if some third party had created a KaZaA shared file folder on Ms. Andersen’s computer without her knowledge, the implied consent for other users to view and access the contents of such a file would not extend to the unlicensed, illegal, invasive and deceptive MediaSentry activities at issue here. The harmful consequences of plaintiffs’ agents’ alleged acts have certainly befallen Ms. Andersen and not any third party. Ms. Andersen’s claim for intrusion upon seclusion is properly stated.
2. False Light
Plaintiffs incredibly argue that Ms. Andersen’s counterclaims have not alleged any publication made by plaintiffs and therefore that she cannot make a claim for the plaintiffs’ placing her in an offensive ‘false light’ through their baseless accusations of copyright infringement.
Plaintiffs acknowledge that their complaint accusing Ms. Andersen of committing unlawful acts and owing tens or hundreds of thousands of dollars in money damages is indeed a statement that was publicly filed. These allegations have been republished countless times on the internet. In addition, there are other publications, including communications by MediaSentry to plaintiffs, by plaintiffs to Settlement Support Center, by plaintiffs to the Los Angeles law firm, and other communications amongst and between these parties, as is set forth in her counterclaims.
Plaintiffs attempt to cloak all of these various publications with the protection of the Noerr-Pennington doctrine as ‘conduct incidental to the prosecution of the suit’. Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1528 (9th Cir. 1991), aff’d, 508 U.S. 49 (1993). Plaintiffs fail to mention the limitations on the doctrine set forth in Columbia Pictures and later cases.
In its review of the Columbia Pictures decision, the Supreme Court confirmed that Noerr-Pennington does not protect suits that are ‘objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.’ 508 U.S. at 60.
More recently, in Theofel, supra, 359 F.3d 1066, the 9th Circuit found the doctrine also does not protect objectively baseless discovery tactics, regardless of the merits of the lawsuit itself:
We are skeptical that Noerr-Pennington applies at all to the type of conduct at issue. Subpoenaing private parties in connection with private commercial litigation bears little resemblance to the sort of governmental petitioning the doctrine is designed to protect. Nevertheless, assuming arguendo the defense is available, it fails. Noerr-Pennington does not protect ‘objectively baseless’ sham litigation. See Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993). The magistrate judge found that the subpoena was ‘transparently and egregiously’ overbroad and that defendants acted with gross negligence and in bad faith. This is tantamount to a finding that the subpoena was objectively baseless.
Defendants urge us to look only at the merits of the underlying litigation, not at the subpoena. They apparently think a litigant should have immunity for any and all discovery abuses so long as his lawsuit has some merit. Not surprisingly, they offer no authority for that implausible proposition. Assuming Noerr-Pennington applies at all, we hold that it is no bar where the challenged discovery conduct itself is objectively baseless
359 F.3d at 1078-1079 (citations omitted).
As is set forth at length in the introductory section, Ms. Andersen has alleged in her counterclaim that plaintiffs’ suit against her is objectively baseless. There is no evidence whatsoever that she infringed upon plaintiffs’ copyrighted recordings. Plaintiffs’ agents told her that plaintiffs intended to coerce payment from her regardless of whether or not she had committed infringing acts. Ms. Andersen maintained her innocence in early dealings with plaintiffs and their agents, and even urged them to inspect her computer to verify it. They refused, and sued her instead. A later inspection of her computer was fruitless, but the suit did not end there.
Ms. Andersen then identified ‘gotenkito’, who plaintiffs alleged infringed copyrights. Plaintiffs not only continued litigation against Ms. Andersen, they engaged the most abusive and shameful tactics. Plaintiffs’ latest efforts to extort money from Ms. Andersen have included thug-like intimidation of Ms. Andersen and her now 10 year old daughter. Most recently plaintiffs have sent private investigators to locate and attempt to contact Ms. Andersen’s young daughter. They have told her that unless she gives up her counterclaims they will continue to threaten and intimidate her and her daughter. They have acknowledged the lack of any support for their claims but have refused to stop their persecution unless Ms. Andersen walks away from her claims against them. Threatening to abuse and intimidate Ms. Andersen’s daughter in this manner is plain thuggery and extortion: ‘dismiss your claims and we will not harm your daughter’ is something that belongs in a bad gangster movie. It is not something protected by Noerr-Pennington.
Plaintiffs’ conduct is actionable and is not protected by the Noerr-Pennington doctrine, and their various statements and innuendo portraying Ms. Andersen as an infringer and a thief give rise to her properly pled false light claim.
3. Public Disclosure of Private Facts.
Plaintiffs’ arguments as to this tort are based the same pair of mistaken assumptions as discussed above with respect to the false light claim: (1) statements by plaintiffs and their agents concerning Ms. Andersen were not published; and (2) all of the statements of plaintiffs and their agents are subject to Noerr-Pennington protection. For the same reasons set forth supra, these assumptions are incorrect. In accordance with the generous inferences afforded the party who has filed a pleading upon a Fed. R. Civ. Pro. 12(b)(6) motion that seeks to dismiss it, supra, Ms. Andersen’s claim for public disclosure of private facts must stand.
E - Ms. Andersen has Adequately Pleaded the Elements of a Claim for Abuse of Legal Process
Plaintiffs mistakenly assert that Ms. Andersen’s counterclaim can satisfy all but one requisite element for a claim for abuse of legal process under Oregon law. See, e.g., Acro-Tech, Inc. v. Robert Jackson Family Trust, 2001 WL 1471753, at *8 (D. Ore. Sep. 6, 2001). Plaintiffs erroneously argue that she cannot show an ‘arrest or seizure of property’.
Based on plaintiffs’ allegations, Ms. Andersen did suffer a seizure of her private digital property. She also was and continues to be chilled against the lawful use of her computer for fear of further invasion and harassment by plaintiffs and their agents. She also invested substantial resources into investigating the integrity of her computer and the allegations of infringement at the insistence of the record companies. In accordance with all inferences afforded the party who has filed a pleading upon a Fed. R. Civ. Pro. 12(b)(6) motion that seeks to dismiss it, supra, Ms. Andersen’s claim for abuse of legal process must stand.
F - Ms. Andersen has Adequately Pleaded the Elements of Claims for Fraud and Negligent Representation
Plaintiffs contend that Ms. Andersen has not pleaded a claim for fraud or negligent misrepresentation. They first argue that she did not reasonably rely on any representation of the plaintiffs. This assertion flies in the face of the reliance Ms. Andersen placed on various representations of the plaintiffs and their agents, including the statement contained in the February 2005 letter from plaintiffs’ lawyers that ‘[t]he evidence necessary for the record companies to prevail in this action has already been secured.’ Ms. Andersen is not a person with great knowledge or experience in copyright law or computer technology. She was understandably shocked, fearful, and upset, and did in fact reasonably rely at that stage on the self-assured statements of lawyers and other agents when they told her that her computer had been used to engage in massive copyright infringement. This is understandable when agents and employees of huge multination corporations with disproportionate sophistication in the relevant areas include you in a national enterprise of intimidation. In response, Ms. Andersen invested substantial emotion, time and resources into investigating the integrity of her computer and the allegations of infringement at the insistence of the record companies. Ms. Andersen did not at first know that plaintiffs’ assertions were based on illegal, careless or non-existent investigation. After substantial effort, she learned about plaintiffs’ willful ignorance, and had to consider a different universe of possibilities in an attempt to understand how and why it was that she was being so tragically targeted. This state of belief caused her certain confounding anguish and anxiety, at least until such time as she came to learn that plaintiffs’ campaign against her was not founded in reason. Like others, she would be persecuted and harassed regardless of the total lack of support for plaintiffs’ claims against her. Plaintiffs’ conduct caused Ms. Andersen’s medical and psychological condition to worsen and her symptoms to flare up, requiring that she return to her doctor and causing her to be unable to return to work.
Plaintiffs further erroneously argue that a claim of negligent misrepresentation requires a ’special relationship’ between Ms. Andersen and plaintiffs. In this instance, Ms. Andersen submits that the grossly disproportionate power and sophistication that the plaintiffs brought to bear against her in making their accusations and demands for ’settlement’ payments should suffice, considering all inferences granted to her upon plaintiffs’ motion to dismiss. Given the massive national illegal enterprise, the relationship is exactly as intended: victimizer and victim intended solely to serve plaintiffs’ national public relations campaign of intimidation.
Even if the court ignores the relationship of persecuted and persecutor or the horribly lopsided positions of power (not to mention the bad faith that the plaintiffs and their agents exhibited during their ’settlement discussions’) to suffice as a special relationship, Ms. Andersen’s fraud claim does not require the existence of such a relationship and it must stand. See Rice v. McAlister, 268 Or. 125, 519 P.2d 1263 (Or. 1974)(elements of fraud claim). In the circumstances presented, plaintiffs are estopped from asserting that Ms. Andersen should not have believed them or relied on their statements. Here, the awful strategy they developed has its intended consequence.
Finally, plaintiffs again rely on the notion that all of the statements of plaintiffs and their agents are subject to blanket protection under the Noerr-Pennington doctrine. For the reasons set forth supra with respect to the invasion of privacy claims, this reliance is unfounded and misplaced.
G - Ms. Andersen has Adequately Pleaded a Claim for Outrage or Intentional Infliction of Emotional Distress
Plaintiffs do not dispute that Count 6 of Ms. Andersen’s counterclaim, denominated as outrage, can satisfy all but one requisite element for a claim of intentional infliction of emotional distress (IIED) under Oregon law. See, e.g., Campbell v. Safeway, Inc., 332 F.Supp. 2d 1367, 1376 (D. Or. 2004). However, plaintiffs argue that she cannot show that plaintiffs’ acts constituted an ‘extraordinary transgression of the bounds of socially tolerable conduct’.
Observing that a ’special relationship’ between the parties is frequently a factor in successful IIED claims, see Delaney v. Clifton, 180 Or. App. 119, 130, 41 P.3d 1099, 1106-07 (Or. App. 2002), plaintiffs mistakenly assume that such a relationship is a condition precedent for bringing a claim. This is not correct. In fact, the Delaney court held that ‘[w]hether the conduct alleged is sufficiently extreme or outrageous to be actionable is a fact-specific inquiry, one to be made on a case-by-case basis considering the totality of the circumstances.’ Id., 180 Or. App. at 130, 41 P.3d at 1106, citing Lathrope-Olson v. Dept. of Transportation, 128 Or. App. 405, 408, 876 P.2d 345 (Or. App. 1994). The Delaney court also noted one successful case where no special relationship existed. See Kraemer v. Harding, 159 Or. App. 90, 976 P.2d 1160 (Or. App. 1999) (IIED claim successfully brought by school bus driver against parents of children who rode on plaintiff’s bus)
As discussed at length above, plaintiffs’ conduct in the investigation, instigation, and continued persecution of this suit was and continues to be outrageous. There has never been any evidence whatsoever that Ms. Andersen infringed upon plaintiffs’ copyrighted recordings. Plaintiffs’ agents told her that plaintiffs intended to coerce payment from her whether or not she had committed infringing acts. Ms. Andersen maintained her innocence in early dealings with plaintiffs and their agents, and even urged them to inspect her computer to verify it. They refused, and sued her instead. A later inspection of her computer by plaintiffs’ expert was fruitless, but the suit did not end there. Plaintiffs’ continued litigation against Ms. Andersen is not only a sham, it is abusive and malicious. Their threats against Ms. Andersen and her daughter are equally abusive and beyond all bounds of social decency. The litigation threats can only be understood as a means for plaintiffs to extort money from her and/or to intimidate her and others as part of the RIAA’s massive anti-piracy campaign. The employment of such tactics on a massive scale is unprecedented in the history of civil litigation in the federal courts. If nothing else, plaintiffs’ acts are an ‘extraordinary transgression of the bounds of socially tolerable conduct’.
Even if a ’special relationship’ were required, the grossly disproportionate power and sophistication that the plaintiffs brought to bear against Ms. Andersen in making their extortionate, false accusations and demands for ’settlement’ payments should suffice to create a relationship of victimizer and innocent victim, especially considering all inferences granted to her upon plaintiffs’ motion to dismiss.
Finally, plaintiffs again rely without any basis on the notion that all of the statements of plaintiffs and their agents are subject to blanket protection under the Noerr-Pennington doctrine. For the reasons set forth supra with respect to the invasion of privacy claims, this reliance is unfounded and misplaced. Ms. Andersen’s claim for outrage or IIED must stand.
Ms. Andersen has Adequately Pleaded the Elements of a Claim for Deceptive Business Practices
Plaintiffs contend that Ms. Andersen has not pleaded a claim for violation of the Oregon Unlawful Trade Practices Act, ORS 646.605 et seq., because she did not reasonably rely on any representation of the plaintiffs. This assertion flies in the face of the reliance Ms. Andersen placed on various representations of the plaintiffs and their agents, including the statement contained in the February 2005 letter from plaintiffs’ lawyers that ‘[t]he evidence necessary for the record companies to prevail in this action has already been secured.’ Ms. Andersen, not a person with great knowledge or experience in copyright law or computer technology, was understandably shocked, fearful, and upset, and did in fact reasonably rely at that stage on the self-assured statements of lawyers and other agents speaking on behalf of plaintiffs–huge multination corporations with disproportionate sophistication in the relevant areas. She invested substantial resources into investigating the integrity of her computer and the allegations of infringement at the insistence of the record companies. Ms. Andersen did not then know that plaintiffs’ assertions were based on illegal, careless or non-existent investigation and willful ignorance. Ms. Andersen understandably had to later consider a different universe of possibilities in an attempt to understand how and why it was that she was targeted. This state of belief caused her great anguish, anxiety, and physical harm. The fact that she has overcome their extortion, intimidation and threats long enough to understand (and prove to them) that their allegations are baseless is irrelevant. Her willingness to stand up to their thuggery is no defense for their illegal conduct. Plaintiffs’ conduct caused Ms. Andersen medical and psychological damages. She was required to return to her doctor and has been unable to return to work.
Finally, plaintiffs again rely on the notion that all of the statements of plaintiffs and their agents are subject to blanket protection under the Noerr-Pennington doctrine. For the reasons set forth supra with respect to the invasion of privacy claims, this reliance is unfounded and misplaced. Ms. Andersen’s claim for violations of the Oregon Unlawful Trade Practices Act must stand.
H - Ms. Andersen has Adequately Pleaded a Claim under the Oregon RICO Statute
Plaintiffs’ argument as to Ms. Andersen’s claim under the Oregon Racketeer Influenced and Corrupt Organization Act, ORS 166.175 et seq., is based on plainly false statements about the contents of her counterclaim.
4. Plaintiffs’ Enterprise
First, plaintiffs spuriously assert that Ms. Andersen has not alleged the existence of an enterprise involving the plaintiffs and even that ‘[i]ndeed, the word ‘enterprise’ does not appear in the text of her counterclaim.’ In fact, in describing in considerable detail the enterprise she understood at the time to exist amongst plaintiffs, MediaSentry, and Settlement Support Center, Ms. Andersen’s counterclaim uses the term ‘enterprise’ no less than four times. See Docket #112, ¶¶81, 83, 86. It appears that the counterclaim has not yet been seriously considered, or even read.
5. Plaintiffs’ Racketeering Activity
Plaintiffs also erroneously argue that Ms. Andersen has not adequately alleged that they have engaged in a ‘pattern of racketeering activity’ as set forth in ORS 166.270(6). A brief review of each element of the statute demonstrates that this argument is incorrect.
First, Ms. Andersen has set forth a statement of the acts constituting each incident of racketeering activity consistent with ORS 166.720(6)(a). The counterclaim describes how plaintiffs used MediaSentry to illegally invade Ms. Andersen’s computer under false pretenses, and directed Settlement Support Center to attempt to coerce payment from Ms. Andersen whether or not she had committed infringing acts. The counterclaim further describes how plaintiffs and/or other RIAA member companies used the same or highly similar tactics in a 2004 attempt to coerce payment from another individual, again with an admitted lack of regard to the individual’s liability for infringing acts. See Motown Records, et al. v. Nelson, No. 04-73646 (E.D. MI).
Second, contrary to plaintiffs’ unsubstantiated assertion, the counterclaim alleges that plaintiffs’ improper acts occurred ‘on or about a designated date, or during a designated period of time’, consistent with ORS 166.720(6)(b). The pleading states that the conduct began in 2004 with the filing of the anonymous suit against her in the District of Columbia (of course, Ms. Andersen was not notified of the suit, so it is reasonable that she could not supply a more specific date). However, the counterclaim also describes the alleged investigation by MediaSentry–only plaintiffs and their agents really know how, if or when and if this occurred. Still the documents supplied by plaintiffs suggest it occurred in May 2004. The pleading specifically mentions that the course of dealings with plaintiffs’ lawyers and Settlement Support Center began with the February 2, 2005 letter from the lawyers and continued thereafter. As is further set forth in the counterclaim, the racketeering activity has persisted to date, all to Ms. Andersen’s detriment. As for the relevant dates in the Nelson case, these were incorporated by reference to that case in the pleadings. Surely, as Ms. Andersen continues to be persecuted, threatened, intimidated and subjected to baseless litigation thuggery, the illegal and improper acts and relevant dates continue. Given these facts and considering the favorable standards afforded her, plaintiffs’ motion to dismiss is without merit.
Third, and without explanation, plaintiffs argue that the counterclaim has not made any allegation ‘designating which distinguishing characteristic or characteristics interrelate the incidents of racketeering activity’ consistent with ORS 166.720(6)(c). Again, one wonders whether plaintiffs have even reviewed the document filed. The counterclaim alleges, inter alia, the following characteristics common to the instant case and the Nelson matter: RIAA member plaintiffs; anonymous suits against individuals without notice; plaintiffs’ use of MediaSentry to illegally investigate and allegedly invade an individual’s personal computer; coercive communications from plaintiffs’ agents Settlement Support Center in an attempt to secure payment; and, most important, extortion efforts, threats, and intimidation to serve a PR war and deny Ms. Andersen’s legal rights are classic racketeering activities.
6. Unlicensed and Illegal Private Investigators
Nowhere do plaintiffs contest the fact that their private cyber-investigators acted illegally and in violation of ORS 703.405 to allegedly investigate Ms. Andersen’s ‘activities, movements, whereabouts….conduct,…transactions [or] acts’. ORS 730.401. Again, hiring an unlicensed private eye to allegedly spy on innocent citizens is more appropriate to a bad gangster movie than a federal lawsuit. Using these illegal acts as a basic foundation of a national enterprise of intimidation and extortion is also an abusive example of plaintiffs’ organized racketeering activity. Jimmy Cagney or Edward G. Robinson would approve. This court should not.
7. Mistaken Assertion of Immunity
Finally, plaintiffs again rely on the notion that all of the acts of plaintiffs and their agents are subject to blanket protection under the Noerr-Pennington doctrine. For the reasons set forth supra with respect to the invasion of privacy claims, this reliance is unfounded and misplaced. In particular, plaintiffs’ argument that the subpoenas it deployed to ISPs are protected by the doctrine is clearly inconsistent with the 9th Circuits’ opinion in Theofel, supra, 359 F.3d at 1078-1079.
For these reasons, Ms. Andersen’s claim for violations of the Oregon Racketeer Influenced and Corrupt Organization Act must stand.
CONCLUSION
As discussed above with respect to each count of her counterclaim, Ms. Andersen has alleged a legally sufficient basis for recovery against the plaintiffs. Considering the favorable inferences and assumptions of truthfulness afforded her allegations upon a motion to dismiss them pursuant to Fed. R. Civ. P. 12(b)(6), plaintiffs’ motion must be denied.
Respectfully submitted this 23rd day of April, 2007.
Lybeck Murphy, LLP
Also See:
highlighted - Tanya ups the ante in RIAA case, April 25, 2007
grill Kylee - RIAA vs Kylee hits the mainstream, March 28, 2007
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