p2pnet news | RIAA News:- RIAA attacks on the 30,000 or so innocent American men, women and children accused of being massive online distributors of copyrighted music are, “corporate McCarthyism,” says a lawyer defending one of the victims.

People being sued for something they didn’t do, “are expected either to turn in their acquaintances, friends, relatives and children upon mere suspicion of their downloading music, or else face crushing liability”.

The charge is levelled by lawyer Richard Altman (right) in the latest installment of Lava v Amurao.

Not far into 2008, Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA dropped its claim against Rolando Amurao.

Now, “Plaintiffs’ accounting of the history of this action reveals what their true motivation is,” says Altman in a new court document, “not the seeking of appropriate relief for copyright infringement, but rather the terrorizing of individuals and their families.

“Extortionate and non-negotiable demands for settlement are made before and after litigation is commenced, but defendants who have the temerity to defend themselves or refuse to implicate others are somehow blameworthy, and they are expected to cooperate fully or be sanctioned if they don’t. This is exactly backwards. A lawsuit is not an invitation to a defendant to engage in a dialogue, and plaintiffs’ self-pitying plaint that defendant refused to engage in one is frankly contemptible.”

The real targets

As p2pnet has pointed out repeatedly, and alone, it’s now SROP (Standard RIAA Operating Procedure) to go after a given victim, making his or her life literal hell, humiliating them publicly and privately with unfounded allegations.

But just before things reach the stage when the case will almost certainly be dismissed out of hand with the likelihood of costs being awarded against the RIAA, it abandons it.

That isn’t, however, the end. It’s the beginning. Because the RIAA then turns to its real target —- the child, or children, of the original victim.

It’s a scenario that’s been repeated scores of times but it’s getting harder and harder for the RIAA to maintain the farce as more and more people join the We’re Not Taking Any More club, and demands for detailed scrutiny of the RIAA ‘investigator’ MediaSentry increase in strength and number.

People who’ve been following the the RIAA Rake’s Progress have also been wondering why Matt ‘The Dentist’ Oppenheim, described by Recording Industry vs The People’s Ray Beckerman as a “mystery figure whose shadowy role in these cases is quite problematic,” keeps showing up.

One of Oppenheim’s more memorable quotes was, the “Fourth Amendment does not apply to (the RIAA)” with respect to the sue ‘em all lawsuits launched by the Big Music cartel-owned RIAA against file sharers.

He used to work for the RIAA and although he left some time back, he’s still working for the Big 4 in the wings.

He’s also been known to turn his hand to Hollywood’s MPAA.

How did Oppenheim earn his sobriquet?

He described himself to Jesse Jordan, one of his victims, as a, “dentist you don’t ever want to have to visit again”.

Oppenheim also figured in the Amurao case in which the RIAA is, predictably, now going after Amurao’s 24-year old daughter.’

‘Erroneous theories of secondary liability’ 

Acting for Amurao, Altman A) wants MediaSentry evidence excluded on grounds it was illegally obtained; and, B) that Oppenheim be deposed.

His demands come in opposition to the RIAA’s motions for voluntary dismissal, for summary judgment on the copyright misuse counterclaim, and for discovery sanctions, says Recording Industry vs The People.

Says Altman >>>

Plaintiffs’ motion is a bad-faith attempt to prevent accountability for its own misconduct and to bully defendant into settling a non-existent claim on onerous and unacceptable terms.

They failed to conduct an adequate pre-filing investigation before suing this defendant, they now freely and admit he is innocent of copyright infringement and that they have sued the wrong person, their entire pre-filing investigative methodology is flawed (and they know it), guaranteeing that innocent people will be caught up in their dragnets, and now that they realize their mistake (of which they were made aware from the beginning of this litigation), they wish to just walk away with a simple ‘never mind,’ but nonetheless continue to harass the defendant by suing his 24-year old daughter, all the while seeking to sanction defendant because of their own sanctionable conduct, not only in commencing this action in the first place, but in continuing to litigate long after the realities were known to them.

Plaintiffs’ accounting of the history of this action reveals what their true motivation is: not the seeking of appropriate relief for copyright infringement, but rather the terrorizing of individuals and their families. Extortionate and non-negotiable demands for settlement are made before and after litigation is commenced, but defendants who have the temerity to defend themselves or refuse to implicate others are somehow blameworthy, and they are expected to cooperate fully or be sanctioned if they don’t. This is exactly backwards. A lawsuit is not an invitation to a defendant to engage in a dialogue, and plaintiffs’ self-pitying plaint that defendant refused to engage in one is frankly contemptible.

The proper outcome of these motions is that (1) the complaint should be dismissed with prejudice, as plaintiffs have requested, but (2) defendant should be awarded a reasonable attorney’s fee and costs; (3) the motion to dismiss his counterclaim should be denied without prejudice to renewal after defendant has had the opportunity to take the deposition of Mr. Oppenheim (as requested in defendant’s motion), or in the alternative, the Court should order a continuance, pursuant to F.R.Civ.P. 56(f); and (4) sanctions should be denied.

Altman adds >>>

The real-world implications of plaintiffs’ arguments are disturbing. According to them, the evil of copying of song files, and the need to punish infringers, must prevail over the intimate relations between parents and their children. Moreover, defendants cannot merely defend themselves on the basis of their own innocence, or the legal defenses available to them, and pursue a proper and non-frivolous legal strategy which they and their counsel believes serves their interests.

Instead, defendants have an affirmative obligation to cooperate with those suing them and immediately investigate and identify other wrongdoers, and if they fail to do so, they should be sanctioned. Copyright laws exist solely to protect creativity. They do not exist to further what it is not hyperbole to characterize as corporate McCarthyism, where people who are sued for something they did not do are expected either to turn in their acquaintances, friends, relatives and children upon mere suspicion of their downloading music, or else face crushing liability. No one defends piracy or copyright infringement.

But when the argument amounts to imposing an obligation upon parents to turn in their children, something has gone seriously awry in our society and the legal system it is supposed to reflect.

And when billion-dollar corporations sue individuals solely on the basis of illegally obtained evidence, without the most minimal investigation to ascertain if they actually have the right person, and they are not then sanctioned when it turns out they have the wrong one, or at least obliged to make the innocent defendant whole by reimbursing him for his attorney’s fees and costs, the federal courts are becoming willing accomplices to this perversion of copyright law.

In an amicus curiae brief, the EFF (Electronic Frontier Foundation) says the lawsuit is no more than another, “skirmish in the broader war” the RIAA is waging, with “thousands of ordinary people around the country, including grandmothers, grandfathers, single mothers and teenagers” as the targets.

The RIAA is, “attempting to expand the scope of its copyright protections beyond what the statutes provide,” says the EFF brief.  “This copyright ‘grab’ stems from the plaintiffs’ erroneous theories of secondary liability in copyright law.

“These theories, which the RIAA knows are wrong, attempt to put parents, employers, teachers, and other internet account holders on the hook for third-party computer activities, even when the defendant has no knowledge or ability to supervise the actual alleged infringers.”

Stay tuned.

Jon Newton – p2pnet

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This entry was posted on Saturday, March 29th, 2008 at 10:15 am and is filed under RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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