Barratry, Champerty, SLAPP
p2p news / p2pnet:- p2pnet tech manager Sixto Luis Santos and I were talking about the RIAA sue `em all cases, figuring out how we`re going to present the new We’re Not Taking Any More club feature we`re planning for the p2pnet site upgrade, which is nigh.
Theres a legal term for what the RIAA is doing, said Santos. It’s called Barratry.
“In criminal and civil law, barratry is the act or practice of bringing repeated legal actions solely to harass. Usually, the actions brought lack merit. This action has been declared a crime in some jurisdictions.”
Santos pointed me to a Wikiepedia post on the subject, which also suggests, “champerty, SLAPP, vexatious litigation, abuse of process, malicious prosecution”.
Battling the Mafiosi
Still on the RIAA cases, “I just read your ‘We’re Not Taking It Anymore’ Club article on p2pnet.net,” emailed Anna. “I’ve never been sued by RIAA, but I do feel strongly against their actions.”
She went on to mention RICO (Racketeering Influenced and Corrupt Organization) saying, “Don’t laugh. It’s a very potent law. It was originally created to battle the Mafiosi, but it has been recently used to file suits against insurance companies (by the medical associations), corrupt moving companies, and even against ‘quackbusters.’ Google it; it gets to be interesting reading.
“I believe that what the RIAA is doing is racketeering and harassment. I think a creative lawyer could possibly go to town on this. If they get maybe 15 or 20 people who have been unjustifiably sued by RIAA, I’m sure they’ll have a strong case.
“Keep up the good work. I’m hoping the RIAA and their ilk get their comeuppance.”
John Hermann is one of the lawyers working for RIAA victims and, “I’ve reviewed the RICO statutes and case law and am aware of its possible applications,” he told us. “That being said, my experience at the federal level is that federal judges are extremely reluctant to apply RICO to cases such as these.
“Approximately two years ago I made the same argument in the context of a collection outfit hired by several satellite television companies to threaten suit for purchasing signal modification devices. Although I’d obtained statements from ex-investigators indicating that they were told to lie to people, threaten criminal prosecution and personal exposure, threaten suit, even though in some instances they couldn’t due to jurisdictional issues and the statute of limitations, etc.
“Notwithstanding the statements, nearly every federal judge in our district refused to apply RICO citing the Noerr-Pennington doctrine of pre-suit immunity. In fact, some states even have onerous anti-slapp statutes that penalize the filing of such suits if they are later dismissed or thrown out.
“Nonetheless, I still anticipate filing some sort of action, probably in state court. As a tactical measure, I think the client may be better served filing such a claim after he/she has been dismissed and the RIAA has no further threat of litigation hanging over them.”
Something I purchased in another format
In another email Ann (no relation to Anna ; ) wrote:
“I read with interest an article regarding the ‘we’re not taking it anymore club’. I have a question regarding file sharing that I haven’t heard addressed anywhere. Perhaps you can help.
“If I bought an album, cd, or cassette tape from someone, can I legally download the music? Put another way, if I bought a Led Zeppelin album in the 70’s, can I legally download the music so I have a digital recording of something I purchased in another format?”
“Unclear,” says Jason Schultz at the EFF (Electronic Frontier Foundation) “but it’s probably one of the stronger cases for fair use if you only download one copy of the album to match the one copy you bought.
“Uploading, however, is an entirely different matter.”
Cheers!
Jon
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First they ignore you, then they laugh at you, then they fight you, then you win
- Mohandas Gandhi
September 20th, 2005 at 5:55 pm
“”If I bought an album, cd, or cassette tape from someone, can I legally download the music? Put another way, if I bought a Led Zeppelin album in the 70’s, can I legally download the music so I have a digital recording of something I purchased in another format?”
“”Unclear,” says Jason Schultz at the EFF (Electronic Frontier Foundation) “but it’s probably one of the stronger cases for fair use if you only download one copy of the album to match the one copy you bought. ”
Deliberately unclear
…….
The RIAA had the PERFECT opportunity to have this very issued “clarified” by a Judge in the Cecilia Gonzalez case.
Instead, they DROPPED more than one thousand songs from their “infringement list” after discovering that Cecilia owned purchased copies of them. That is why the final tally was only 30 “counts” of infringement.
Now the RIAA supporters can still say it’s “Illegal” although it hasn’t been tested. Heh, it’s the same way they claim “victories” for settlements.
It almost appears that the RIAA is worried enough about this that they wish to avoid having a Judge set a precedent
That’s kinda how the Gozalez “Loss” turned into a small victory. What they wouldn’t sue for was just as important.
Dreddsnik
Boycott-RIAA.com
September 20th, 2005 at 11:07 pm
Downloading really needs clarifying because there are all sorts of shades of grey here. Consider that you could download from iTMS, napster, allofmp3.com, Kazaa or soulseek. The end result would not be significantly different from an MP3 that you had ripped yourself from a CD you bought or with a bit more effort an LP you bought.
I’ve had advice that downloading in the UK is illegal. http://www.ecademy.com/ node.php?id=35200 In fact ripping is also illegal given the copyright notice on the back of most CDs. I’m not sure I believe this and again there is no case law to back it up and some case law around VCRs that may apply.
The essence here is that simply having a large collection of music on your hard disk is not proof of much of anything. Even having it in a directory that is shared doesn’t prove much of anything either. You would think, wouldn’t you that the RIAA would actually have to have proof of actual uploading rather than simply the presence of the files. If, of course, uploading to somebody else is actually illegal.
BTW. I posted this earlier
http://www.ecademy.com/node.php?id=11259
which tries to explore the grey areas. Now here at http://p2pnet.net/story/6314
September 21st, 2005 at 1:10 am
oh, i think if the law isnt working for the RIAA, it will be changed with enough money/campaign contributions to comply with the cartels needs.
September 21st, 2005 at 1:22 pm
I have been trying to push the Racketeering/Intimidation/Extortion/Harrassment/Abuse of Process/Monies by Menace etc angle since my case started way back at the beginning of this year (dvdr-core) but no-one (I even contacted Interpol on this as amost if not all of the above situations are a criminal offense) is interested in pursuing these angles at all.
A judge in the UK has even stated that what the actions of the MPAA amount to is Monies by Menace yet no authority is willing to prosecute the parties responsible.
The whole “pay us $100 000 USD or we will sue you for millions” methodology is clearly nothing less than extortion and should be treated accordingly. Especially considering no judgement has _ever_ been made in a court regarding P2P indexing.
It is about time the law started paying attention to the needs of the people and dealing with the criminal activities of the MPAA/RIAA instead of just allowing them to continue to make ordinary peoples live’s a misery.
October 7th, 2005 at 4:16 pm
That Wikie site on SLAPPs is great. I got a copy from Amazon of Be careful who you SLAPP the book that seems to be recommended and so far I must say I’m quite pleased with the book.
Cheers!
October 18th, 2005 at 2:37 am
FYI: http://www.amazon.com/exec/obidos/tg/detail/-/0972514104/qid=1129599088/sr=8-1/ref=pd_bbs_1/002-1395966-4260804?v=glance&s=books&n=507846