File-Sharing Defendant Countersues RIAA; Identification Process ‘Murky’

At issue is the industry’s use of MediaSentry, an antipiracy firm since acquired by SafeNet (WID June 3 p10), to identify alleged file-sharers by IP address. The counterclaims in Atlantic v. Andersen said MediaSentry “invaded” Andersen’s computer through “illegal acts of subterfuge.”

Andersen is also suing for health damages. She receives Social Security disability payments for fibromyalgia, which contributes to her depression, her attorney Lory Lybeck told us. “She was actually on a nice upswing” and hoped to return to work at the Justice Dept., but the stress from the suit “had a major impact on both her emotional and physical conditions,” making her restart medication and visit her doctor, he added.

Andersen was first sued in U.S. Dist. Court, D.C., in mid-2004 as an unnamed defendant, but she never received a summons and complaint, the counterclaims said. She first learned of the suit from an L.A. law firm’s letter in Feb. 2005, and later talked to Settlement Support Center, the industry’s debt collection agency in copyright cases. The center told her MediaSentry had caught her downloading rap music at 4:24 a.m. under the login name “gotenkito@kazaa.com” -- claims she denied. According to the counterclaims, a Settlement Support Center employee told her he thought she wasn’t guilty of downloading, but the RIAA wouldn’t drop the case because that would encourage other defendants to refuse to settle.

Andersen’s computer has a security access code to prevent unauthorized use, and she doesn’t know how to download music, Lybeck said. Her 8-year-old daughter couldn’t have downloaded music, he added. The RIAA could have spared the expense of suing Andersen by taking up her offer to search her computer for file-sharing evidence: “It would have taken them maybe 30 minutes,” Lybeck said.

Through MediaSentry, RIAA is alleged to have: (1) Committed electronic trespass. (2) Violated the Computer Fraud & Abuse Act, bypassing Andersen’s “computer security systems” without permission and causing more than $5,000 in direct and consequential damage. (3) Abused the legal process by threatening her with litigation to force a settlement. (4) Falsely claimed she had been “viewed” downloading and distributing 1,000-plus audio files. (5) Engaged in “outrageous conduct” by refusing her offer to inspect her computer and knowingly endangering her health with litigation threats. The counterclaims alleged violations of Ore. trade law and the state’s Racketeer Influenced & Corrupt Organization (RICO) Act, because proceeds from settlements are “used to fund the operation of the record companies’ continued public threat campaigns.” Andersen asked for dismissal of the RIAA suit, statutory and punitive damages under Ore. law, and a jury trial.

RIAA declined to comment, but a spokeswoman told us Andersen’s counterclaims aren’t original and have been struck down before. In Sony v. Scimeca last year, the U.S. Dist. Court, Newark, N.J., dismissed an RIAA defendant’s RICO counterclaims, saying the mailing of summons and settlement demand letters are “precisely the kind of attorney conduct to which the courts previously have refused to attach RICO liability.” Even “frivolous” lawsuits don’t constitute extortion, the court said.

It’s unclear how MediaSentry determines a person -- as opposed to an IP address -- has downloaded copyrighted files. A spokeswoman for SafeNet told us the firm couldn’t describe its antipiracy discovery process in connection with any court case. The MediaSentry discovery process is “a little bit murky and that’s the way they like it,” Lybeck told us. The firm somehow made a mistake in identifying Andersen, possibly through a “transposition error” in the IP address: “If you're doing that millions of times, that sometimes happens,” Lybeck said. Electronic Frontier Foundation staff attorney Jason Schultz told us MediaSentry uses a “modified version” of P2P applications, such as Kazaa, that collects more information than the original version, and searches networks for files matching copyrighted works. But “the chances are high” that the IP address doesn’t correspond to the actual offender, he said; IP addresses are typically shared on university campuses, Wi-Fi hotspots and within ISPs that reassign addresses upon logoff. Some ISPs have been shown to have out-of-date database records for IP address allocation, Schultz added.

MediaSentry’s method hasn’t been evaluated yet in U.S. court. Evidence of infringement provided by MediaSentry was called “hearsay” by Canadian courts earlier this year (WID May 23 p5), but Schultz said that was complicated by the fact that a MediaSentry executive, not the technician responsible for antipiracy operations, submitted testimony. Unknowns in this case make it difficult to judge whether RIAA broke the law: “At some point there could be a privacy violation,” but possibly not an illegal trespass, Schultz added.