Law & Disorder / Civilization & Discontents

Florida defendant goes after RIAA for fraud, conspiracy, and extortion

A Florida woman accused by the RIAA of file-sharing responds by throwing the …

As the RIAA has continued its legal assault on file-sharing, defendants are responding with what amount to boilerplate defenses and counterclaims against the RIAA's allegations of copyright infringement. One recent RIAA target, Suzy Del Cid, is fighting back with a counterclaim that accuses the RIAA of all sorts of nefarious misdeeds.

UMG v. Del Cid is being heard in the US District Court for the Middle District of Florida, and in a counterclaim filed late last week, Del Cid accused the RIAA of computer trespass, conspiracy, extortion, and violations of the Fair Debt Collection Practices Act.

We've seen many of these claims before. Tanya Andersen accused the RIAA of violating Oregon's RICO statute in Atlantic v. Andersen, saying that the RIAA "hired MediaSentry to break into private computers to spy, view files, remove information, and copy images." Del Cid's accusations are similar: "these record companies hired unlicensed private investigators—in violation of various state laws—who receive a bounty to invade private computers and private computer networks to obtain information—in the form of Internet Protocol ('IP') addresses—allowing them to identify the computers and computer networks that they invaded."

There are also allegations of a conspiracy in Del Cid's counterclaim. It details how the Settlement Support Center contacts those fingered by the RIAA after John Doe lawsuits are filed to learn the identity of those using an IP address allegedly engaged in file sharing. Del Cid says that the Settlement Support Center takes "no account of the merits" of a particular claim, instead relying on the "inherent inequality of resources and litigation power" between the record companies and defendants. It's almost the exact same argument Andersen made in 2005, when she said that "record companies have repeated these unlawful and deceptive actions with many other victims throughout the United States."

In this case, Del Cid accuses the plaintiffs of computer trespass, fraud, and abuse, saying that they "intruded into Del Cid's personal computer to obtain information." If Del Cid was indeed on Kazaa, or any other file-sharing network, she will have a hard time convincing a judge that MediaSentry trespassed. "There's no reasonable expectation of privacy, given [Kazaa's] settings," Rich Vasquez, a partner at Morgan Miller Blair, noted when discussing a similar claim in Atlantic v. Andersen.

Vasquez believes that in order for the RIAA to be vulnerable to claims of malicious prosecution in cases like this, someone involved on the music industry's side would have to flip. "It would likely take someone on the inside testifying that the RIAA pursued people that it knew were innocent," Vasquez told Ars. "Then there would be a serious risk of malicious prosecution. But you've got to have them cold."

Del Cid does appear to break new ground with a couple of her counterclaims. She alleges that the RIAA used private investigators unlicensed by the state of Florida (where she lives) to track her online activities in violation of Florida law. Del Cid also accuses the RIAA of violating the Fair Debt Collection Practices Act by "knowingly collecting an unlawful consumer debt," referring to the Settlement Support Center's attempts to settle the case before the lawsuit was filed.

We are going on four years since the first file-sharing lawsuits were brought by the RIAA, and over the past several months, defendants' responses echo a number of similar themes—no doubt due to attorneys sharing "best practices" with one another. The computer trespass and conspiracy claims outlined above are two examples. Other defenses include arguments that the RIAA is barred from recovering damages from individual defendants due to its $115 million settlement with Kazaa and that the damages of $750 per song requested by the record labels are unconstitutionally excessive.

Aside from the occasional claim under state law—like Del Cid's charges that the RIAA used unlicensed private investigators—we are likely at a point where there is nothing new under the sun when it comes to file-sharing litigation. Any significant developments are going to come in the form of rulings—like the award of attorneys' fees to Debbie Foster in Capitol v. Foster—or even jury trials. The RIAA and its defendants have thrown just about everything in the book at one another, and it's up to the courts to decide what charges are going to stick.

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