RIAA Used Intimidation to Get Damning Testimony in P2P Case, Defense Says
An RIAA motion to dismiss without prejudice in the best- known P2P infringement case (WID Dec 20 p5) has met fiery opposition from the defense, which accused the trade group’s lawyer of physical intimidation to extract damning testimony from the defendant’s daughter. RIAA also inexplicably added a new charge against defendant Patricia Santangelo, whom it said wasn’t the “primary” infringer in the house, lawyer Jordan Glass told U.S. Dist. Court, White Plains, N.Y., Judge Colleen McMahon. An RIAA spokeswoman declined to comment.
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Dismissal without prejudice would absolve RIAA of paying attorney’s fees to the defendant and let the group bring a new infringement case against the elder Santangelo if it wishes. RIAA hopes to prevent a repeat of a recent Okla. ruling that it must pay an innocent defendant’s attorney’s fees, still to be set, though in that case RIAA was rebuked for using a secondary liability claim to spur a settlement (WID Feb 8 p3). In Elektra v. Santangelo, RIAA aims to prove Santangelo turned a blind eye to her children’s infringement. Glass filed a similarly inflammatory response and counterclaims on behalf of Patricia’s son Robert (WID Feb 2 p3).
In his brief history with the Santangelo family cases, Glass has been chronically late. He failed to file a response to the infringement suit against Patricia’s daughter Michelle, 18, leading to a $30,750 default judgment (WID Jan 12 p5). His latest reply for Patricia counters RIAA’s opposition to his earlier request to file a late opposition. Glass blamed his govt.-appointed stewardship of a “suicidal” woman and his own physical disabilities. He waved off RIAA complaints that he talked too much to the press, saying his comments were limited and general. Judge McMahon approved the late filing, showing weariness of the parties’ sniping and writing at the top of Glass’s reply: “Enough of these silly letters.”
RIAA conflated the present and past behavior of Patricia in arguing that she was intentionally negligent in supervising her children’s Internet activities, given her familiarity with technology, Glass said. The court observed that Patricia didn’t appear tech-savvy in her first appearance, Glass said, and the elder Santangelo only “researched the ‘downloading industry'” and learned basic computer skills after that first appearance, Glass said. She had no legitimate way to learn that Robert’s friend installed an “insidious program” -- Kazaa -- on her computer, “which operates in the background in ways unknown” to even the person who installed it, he said, likely a reference to Kazaa’s automatic addition of copyrighted files to a shared folder.
But RIAA strangely seemed to add a new charge against Patricia, acknowledged by all as not directly participating in P2P activities, Glass said. The trade group’s latest filing said she “distributed” files more than 100 times 2003- 2004. “How can Ms. Santangelo be a secondary infringer” -- as RIAA has alleged in regard to her ostensibly negligent oversight of her kids -- “but the distributor or downloader or infringer elsewhere?” Glass said. Similarly there’s no hay to be made in that Patricia didn’t actively trace who might have downloaded on her computer, he added: “There’s a long distance between withholding knowledge or turning a blind eye, and becoming [RIAA’s] investigator, or worse.”
Glass’s allegations of how RIAA obtained testimony from daughter Michelle to implicate her mother’s negligence, stand out in the filing. RIAA says Michelle admitted she downloaded illicitly (WID Nov 6 p9). But that was under duress, Glass said: “With RIAA’s counsel physically beating on the table, slamming down Post-It notes with question after question… and scaring Michelle out of her seat, sending her crying from the room, she did not know which way was up for dozens of questions.” Depositions of Michelle -- still guarded by RIAA, and sought by the defense -- “will help explain her often befuddled responses,” he said.
An RIAA claim that Patricia restricted her kids’ chat- room usage also is belied by AOL’s apparent blockage of RIAA antipiracy warnings to the Santangelo computer, Glass said, reprising his argument from Robert’s reply brief. Parents in general have no “reason to know” that antipiracy warnings are being sent to their computers if the provider is blocking them, so RIAA must work it out with ISPs if it learns of delivery problems, Glass said. The messages apparently could have gotten through only if parental controls were turned off: “Should Ms. Santangelo, instead, have left the gate open for the predators and pornographers?” Glass asked.