RIAA Challenges Class-Action Suit by Ex-P2P Defendant

The RIAA made an unusual request to treat Andersen’s allegations as “patently false.” The trade group admitted in a footnote such claims are “generally treated as true for purposes of a motion to dismiss.” But the complaint in Andersen v. Atlantic, also known as Andersen 2, is “riddled with baseless, inflammatory and offensive factual allegations designed more to inflame passion and harm Defendants in the eyes of the public than to state valid claims for relief.” The trade group didn’t know Andersen was disabled before suing, never “threatened persecution” of her daughter Kylee and didn’t call Kylee’s school as Andersen “insinuates,” and RIAA took Kylee’s deposition only after Tanya listed her daughter as a possible witness (WID March 29 p6), the footnote said. Similarly, RIAA’s investigation into who was using the infringing Kazaa account didn’t show that anyone other than Tanya Andersen was at fault, the footnote said.

The Portland court hasn’t decided whether to dismiss Andersen’s second set of counterclaims from Andersen 1, which RIAA agreed to dismiss with prejudice in June. Andersen filed her class-action suit shortly before the court was scheduled to hear oral argument on the counterclaims dismissal, RIAA said. She was “no doubt well aware that she was out of time to amend her counterclaims in Andersen 1 and had taken very little discovery on such counterclaims.”

Andersen 2 uses the same claims as Andersen 1 and makes new claims based on the same “nucleus of operative facts” from the first case, RIAA said. That counts as prohibited “claims-splitting,” or “the quintessential ’second bite of the apple.'” The new parties in Andersen 2 -- the Settlement Support Center that handles negotiations with P2P defendants and RIAA investigator MediaSentry -- were “virtually represented” by RIAA in Andersen 1 because their conduct was essential to the RIAA’s supposed prohibited behavior, the filing said.

Andersen’s negligence claim under Oregon law -- that RIAA misidentified the infringer and worsened her physical condition -- fails because the RIAA had no “duty of care” toward Andersen, the filing said. She only vaguely alleged that the RIAA’s conduct “proximately caused direct damage.” Pressing Andersen for a settlement before filing a lawsuit is protected by the Supreme Court’s Noerr-Pennington doctrine, as settlement is “incidental to the prosecution of the suit,” the trade group said. Andersen’s RICO claim “falls woefully short” by not showing how RIAA member companies specifically engaged in racketeering activities, including the time, place and manner of each act of alleged fraud and each defendant’s role in the scheme. Threats of litigation aren’t “wrongful” under the Hobbs Act, which bars “wrongful use of actual or threatened force” to obtain property consensually, RIAA said.

Andersen can’t plead malicious prosecution because RIAA didn’t bring a criminal case against her, the filing said. RIAA had no “malice” in filing the suit. Infringement was shown by Andersen’s ISP to have occurred three times through her account, RIAA said. She can’t plead intentional infliction of emotional distress because Andersen hasn’t shown that the RIAA’s behavior “constituted an extraordinary transgression of the bounds of socially tolerable conduct,” which under Oregon law presupposes a “special relationship” such as doctor-patient, the filing said.

Perhaps the argument of most interest for privacy purposes is that Andersen’s Computer Fraud and Abuse Act claim is invalid. If it’s true that she was wrongly identified as the infringer, then MediaSentry never actually accessed her computer, RIAA said. “Andersen cannot have it both ways.” Even if her computer was accessed, it was through her own “authorization,” by enabling access to her files through Kazaa, “making them as publicly accessible as any other Web site on the Internet.” The seminal 2003 Verizon Internet decision in U.S. District Court, D.C., which said file-sharers are “essentially opening up the computer to the world,” is controlling here, RIAA said. Andersen’s trespass claim fails because she can’t show her property was “dispossessed… impaired or otherwise damaged.”

The RIAA’s suit didn’t portray Andersen in a prohibited “false light” under Oregon law, RIAA said. She claimed that she had been “subjected to public derision and embarrassment” because of the suit and RIAA’s “public relations campaign,” and that RIAA had made “reckless, shameful and slanderous accusations” about her. The exemption for petitioning the court for redress of a grievance blocks that claim, RIAA said.