How the RIAA has Dodged RICO Charges 126
Gerardo writes "Wondering why the RIAA hasn't been hit with racketeering charges over its shady legal fight against file-sharing? Ars Technica looks at why the RIAA has been able to dodge RICO charges. '"Right off the bat there are some problems with the predicate claims for RICO," explained IP attorney Rich Vazquez. "You have to have a pattern of racketeering activity: either criminal acts where there is a one-year jail penalty, or mail or wire fraud." Any RICO action brought against the RIAA would have to focus on the wire fraud component, likely accusing the record labels of poking around someone's PC without permission.' That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy."
Shouldn't they be asking ... (Score:5, Interesting)
Re:Shouldn't they be asking ... (Score:5, Insightful)
Re:Shouldn't they be asking ... (Score:5, Informative)
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So, in your opinion would you say it is easier to build the entire ship, or to poke a hole just big enough to sink it?
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Re:Shouldn't they be asking ... (Score:5, Insightful)
A RICO case really doesn't have that much to do with boat construction, capisce? It's about ongoing criminal enterprises. In my mind, the RIAA is exactly that, an ongoing criminal enterprise.
When I heard about the way SoundExchange was collecting money for musicians without their permission or knowledge, and then keeping the money unless those artists contacted them to collect, it was the final straw in a very big bale of crooked hay.
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Of course then it has nothing to do with the recording industry...
-nB
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Hear, hear. From now on, only baseball metaphors will be considered acceptable.
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Secondly, you do not have to read our posts.
Lastly, if you cannot see the similarities between the process of contructing a large ship and building a legal case against a large organization then nothing I can say here will help you. Please move along.
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Your ID shows you've been around here long enough to know that after 2 posts, any analogy (ty) using cars, boats, planes, etc gets picked on.
I didn't mean to upset you so. I apologize. Can we still be friends?
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My sensitivity is a big, beautiful car driving headlong on a bypass that simply had to be built...ah, you get the picture.
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Erm... No.
Your lawyer has an obligation to tell you the truth to his/her full knowledge no matter what you want to hear. Either that or he/she can face disbarment. This is the base of the client-attorney trust relationship.
Just imagine if the government or the other part could pay your lawyer to misinform you...
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Possible, yes, likely, not so much.
What follows is not legal advice, unless I've cashed your check at $235/hr.
It's a lot easier to file a state civil RICO counterclaim than to win one.
I've only ever filed one,and never won one.
It tends to be done for tactical reasons,
I've dogded, like, 10000 murder charges (Score:5, Funny)
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RICO laws were not intended for this type of thing, and the RIAA is likely not engaging in racketeering by any technical definitions, AND we all know how technical the law is.
It's sad when Slashdot's moderators wear their biases on their sleeves so blithely that humorous sarcasm pointing out the foibles of others is instantly labeled trolling.
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You're right. It was intended to harass people for drug possession. Get caught with a roach in the ashtray, and the sheriff gets to keep your new Suburban, and maybe your house.
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Here are a few sections of interest:
"Moreover, a group's activities and the statements of its members may properly be
considered in conjunction with each other. A combination of statements and activities may
justify a determination that the threshold standard for a terrorism enterprise investigat
Simple (Score:4, Insightful)
Re:Simple (Score:5, Informative)
Under RICO, a person or group who commits any two of 35 crimes--27 federal crimes and 8 state crimes--within a 10-year period and, in the opinion of the United States Attorney bringing the case, has committed those crimes with similar purpose or results can be charged with racketeering.
The RIAA has yet to actually get hit with their OWN investigation, let alone multiple ones. Since the RIAA hasn't been brought up on charges yet, let alone be convicted, they can't meet those prereqs for RICO.
This still leaves the door open in the future (given the RIAA's current track record), but right now, all that can be done is to keep winning the frivolous suits they bring up against other people and not settling early.
RICO looks like a three strikes law, and the RIAA doesn't have one strike against them yet.
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And what criminal charges would apply? (Score:2)
hide the evidence (Score:1)
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so the needed reform is identified (Score:5, Insightful)
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malicious civil prosecution and filing spurious, meritless, lawsuits need to become crimes with a 366 day maximum jail sentence
Malice means not only hatred, ill will, or spite as it is ordinarily understood; again, to be sure, that is malice; but it also means that condition of mind that prompts a person to intentionally inflict damage without just cause, excuse, or justification. {M]alice, like intent, is a state of mind and as such is seldom proven with direct evidenc
Asking the wrong question. (Score:5, Interesting)
both (Score:1, Insightful)
Ther
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I am not familiar with the law, but if accepting gifts from record companies or people connected to them became a crime, it would be a tad more difficult for them to exert undue influence over radios.
Maybe some laws could be revised.
Re:both (Score:5, Insightful)
Just because everyone charges the same price for a CD does not mean there is collusion. The problem is, CD's are not fungible -- you can only get a U2 CD (legally) from one source, the record label that works with U2.
If you could get U2 CD's (legally) from multiple sources that were in competition with each other, and they still all charged the same price, then THAT might be evidence of collusion.
If people didn't care about which CD they were buying, and only want any old CD, and all CD's were still the same price, that might be evidence of price-fixing as well.
But neither of these are reality -- the fact that a U2 CD and an Usher CD cost about the same amount of money simply means that the record companies can sell a lot of CD's at the current price, and that's what they are priced at. Actually, you can probably get an ABBA CD a lot cheaper than the U2 CD, because the market sets the price, and it's hard to sell an ABBA CD for the price of a new U2 CD. But the fact that the Usher CD and the U2 CD are the same price is not evidence of price-fixing -- if the label selling U2 CD's dropped their price by $2 a CD, you wouldn't expect all of the Usher fans will become U2 fans. Musical taste doesn't usually work that way. Simply put, there isn't a competitive market for CD's like there are for many consumer goods -- each CD is represented (usually) by only a single record label, so there is a single source for the CD, so there CAN'T be collusion on price, at least not for any particular CD.
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If you could get U2 CD's (legally) from multiple sources that were in competition with each other, and they still all charged the same price, then THAT might be evidence of collusion.
The natural price of a good is the sum of the costs involved in it's production, including transport, storage, retail overheads, salaries, and enough profit to push back into A&R to fund the number of failures it takes to find a successful act. Since almost all of those costs will be the same or similar for any two simi
Re:Asking the wrong question. (Score:4, Insightful)
Why is it that... (Score:5, Interesting)
It would only take one memo or email showing that they knew a defendant was not guilty or that they have no real proof or that they know they are fishing for information in court to seriously harm their cause.
I think (and IANAL) that if this could be shown once, it would be proper to ask for all communications between the RIAA and their lawyers regarding any particular case in discovery. That should pretty much shut down their tactics.
Can someone tell me why this doesn't happen?
Re:Why is it that... (Score:5, Funny)
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+1 Hilarious Joke
Attorney Client Privilege (Score:5, Informative)
On the other hand, if you could find a memo between the RIAA and it's constituency or within one of the organizations, it should be fair game...
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Also, in many states only client->attorney communication is privileged; attorney->client is not. California is an exception.
In short, it would be pretty stupid
Presumed guilt? (Score:5, Insightful)
This argument presupposes that you actually had Kazaa installed and actually traded the files.
If some idiot^H^H^H^H^Hexpert from the RIAA gets my current IP address as the ID of someone who has shared music (I've never personally neither shared nor downloaded music
We have yet to see any good evidence that the stuff the RIAA uses to launch these suits even remotely passes muster for the legal requirements. Their experts keep saying it does, but a screen shot of data gathered through dubious measures isn't to be trusted. I'll mock up a screenshot showing anything you like if you give me an hour or so.
I mean, what if the RIAA starts pre-texting to get information about my account once they figure out that I don't have any open ports on my machine and there is no evidence I've ever done anything? Their assertion that an IP address is legally tied to an individual is a completely weak argument. Next they'll claim my firewall is an attempt to prevent them from breaking into my computers to collect the evidence they believe should be there.
I think there's a lot of evidence to support the fact that they're doing some pretty shady things. I mean, how many times have we heard about people who don't even own computers being sued? The RIAA just quietly drops the suit and moves on, hoping nobody will say anything.
Cheers
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Well you should start! Downloading music is fun, fast and efficient. There's a huge selection, and some of it is quite good. And with digital music, it's easy to send copies to your friends.
In particular, I recommend you download music released under a Creative Commons license. For instance, check out: http://www.jamendo.com/en/ [jamendo.com]
Just because you don't want to infringe current copyright law (good for you!) doesn't mean you have to ignor
A screenshot of anything I like (Score:2, Funny)
I would like to see Steve Ballmer's Ubuntu 7.04 GNOME desktop. He is using Evolution to compose a message to billg, suggesting they drop this whole silly Vista business and rebuild Windows on a stable Unix base. His signature uses ASCII art of a fluffy kitten holding his business card.
An Open Office document is also visible, explaining in Ballmer's own words that it's ok Linux is built on "Interlectural Propperty" stolen fr
Expand your thinking of "expectation of privacy" (Score:5, Insightful)
Re:Expand your thinking of "expectation of privacy (Score:2)
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Kazaa has no reasonable expectation of privacy not because it's traffic is unsecured between endpoints but because it takes no steps to obfuscate the end user. The IP addresses and all content shared are broadcast to the network, and that personally identifiable information is readily available to any user on the whole network.
It'
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OK, to counter the counter point... The last couple paragraphs just re-state what I've summed up, which was, they are not mutually inclusive. You can have each by themselves and each independantly (privacy and security).
I would submit that the RIAA is finding it's NOT that simple as to assume the public IP address is there for all to see and easily identifiable. Otherwise, they'd never be wrong. I'm willing to concede that I wasn't using the legal definition of privacy, but the practical. However, I co
Kazaa?! (Score:1)
Why are we still talking about Kazaa in 2007? As far as I know that network has been dead for years.
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No answer for this has been showed for me yet, so I will attempt to answer.
From what I understand of these cases is that most of the lawsuits are being filed using information collected years ago, when Kazaa was widely used.
Ah! The old "Not guilty of the crime" argument (Score:3, Interesting)
The only way to stop the RIAA is for someone to fight them on their terms, and win on the basis that the laws they're suing under don't apply to P2P filesharing. Given the possible costs - expensive even if the defendant wins - this is unlikely to happen.
Re:Ah! The old "Not guilty of the crime" argument (Score:4, Insightful)
Except RICO has become a way to dog pile on a defendant to get them to plea bargain by threatening much higher penalities if they are found guilty. It gives them a bigger hammer to use.
As one lawyer friend put it - You want to learn about right and wrong - seek religion. You want to learn about winning and losing - go to court.
How? (Score:1)
1) Bribe officials.
2) ???
3) Profit
RICO is a bit inappropriate here (Score:5, Informative)
Now, if RIAA employees were being regularly convicted of fraud or extortion for their work activities, but the RIAA was claiming that they didn't officially support this campaign, then RICO would make sense. But, in fact, any crimes being committed are being committed by the RIAA as a whole or its member organizations, so the obvious thing is just to charge them with their particular crimes.
What about extortion? (Score:3, Interesting)
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grammar corrections? You must be new here...
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What if an auto shop damaged your car when you brought it in for service, then gave it back to you and refused to fix the damage they caused. Does 'demanding money' from them mean you're practicing extortion? No, it means you're suing them for property damage, as is your right under the law.
Unless you threaten violence or some other illegal action (like kidnapping or torching their c
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There have been a growing number of cases where people that aren't guilty are reportedly told by the RIAA's representatives that, even if they aren't guilty, the RIAA isn't dropping the suit. What I was wondering is, is it illegal to sue someone, or press forward with a suit, even if you know (or should know) that they probably aren't guilty of what you are accusing them of? I know that the person or company initiating the suit can be found liab
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Not criminal generally -- there might be a criminal contempt issue if someone was ordered by a court to lay off, then still tried to sue, the court might find them in criminal contempt -- but for
Re:What about extortion? (Score:5, Insightful)
My cousin is a lawyer (in Britain, when the winner normally gets their costs from the other side) and he was explaining to me when I challenged him about contract law and 'valueless considerations' (such as promising not to sue for something that they wouldn't be able to successfully sue you for anyway) that even if the other side has no case you won't get all the costs incurred in defence back.
And here's another example, http://www.taubmansucks.com/ [taubmansucks.com], this guy was sued over a trademark issue by someone who had no case. A year later he finally won, and got the costs of engaging a lawyer back. Unfortunately, he couldn't afford to engage a lawyer at the start so had to defend himself. He's a consultant. When he was buried in legal documents, he couldn't work. (from act115) "I probably lost tens of thousands of dollars in potential billings;" - did he see any of that? nope. Work you do to defend yourself is free - if you want to be paid, be a lawyer.
Suing someone without a case is extortion in all but name. Infact it's worse than extortion. If you try to extort me by coming around with a baseball bat, I'd be allowed to take your head off with a big sword, if you did it with a court I have to roll over and take it, or end up in jail/dead.
What do you think about the judge who's suing a dry cleaners for $65million over a lost pair of trousers? if he wins outright they'll be ruined. If he wins 1% of what he's suing for they'll be ruined. Even if he doesn't win, the hidden costs that they've incurred (maybe the stress has caused them to make mistakes and damage other people's trousers) will be close to ruinous (assuming, then, that they get their costs back, which given that they did misplace his trousers, isn't guaranteed). How does that NOT fit the common definition of 'extortion', just because his enforcers have badges and are lead by a man in a wig and a toy hammer?
Re:Trial by press vs trial by court (Score:2)
What do you think about the judge who's suing a dry cleaners for $65million over a lost pair of trousers? if he wins outright they'll be ruined. If he wins 1% of what he's suing for they'll be ruined. Even if he doesn't
RICO??? (Score:2, Informative)
I would call the baseless allegations about copyright infringement exactly that. Extortion at the LEAST.
Since copyright infringement is a CIVIL matter, the RIAA has used criminal laws to reach it's ends. SLAPPING
people who can ill afford a defense. They ARE a criminal racket, and as su
FFS IANAL WTF RICO KTHXBYE (Score:2)
With that in mind, is it really too much to ask that submitters and editors (ha!) edit and insert full length descriptions of acronyms when they are first presented in a story?
e.g. RICO, Racketeer Influenced and Corrupt Organizations Act [wikipedia.org].
Thanks for your time; this has been a public service whine.
How About...? (Score:2)
In the same way the RIAA mislabels other aspects of their legal actions (e.g. calling P2P filesharing Online Media Distribution Systems), calling this a "settlement" agency is absolute New-Speak.
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Wiretapping (Score:2)
That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy.
Doesn't matter how much of a reasonable expectation of privacy the user has. Recording a conversation over a wire is wiretapping. Which is what the RIAA is doing. "User X and address aaa.bbb.ccc.ddd downloaded these packets." IANAL, but I believe it is illegal without a court order. [eff.org]
From the link:
Sec. 2511. Interception and disclosure of wire, oral, or electronic
Um.. no... (Score:2)
i.e. if you call me, and I live in a one party state, I can record the call, and that's not wiretapping.
second, it's not "address aaa.bbb.ccc.ddd downloaded these packets"
but rather, uploaded.. (an important point, complete leechers have not violated the law)
Sort of (Score:2)
first of all, if you are a part to the 'conversation' it's not wiretapping.
IIRC, didn't Nixon get in some hot water recording conversations where he was in the conversation? Still illegal, I believe. IANAL though.
second, it's not "address aaa.bbb.ccc.ddd downloaded these packets" but rather, uploaded.
True. I wonder if someone has tried to work this into a defense? If the RIAA is part of the conversation, then it must be taking place with their consent. If they're not part of the conversation, t
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IIRC, Nixon got caught wrongdoing because he recorded everything and thought those recordings could not be subpoenaed:
He thought wrong. [wikipedia.org]
"The issue of access to the tapes went all the way to the Supreme Court. On July 24, 1974, in United States v. Nixon, the Court (which did not include the recused Justice Rehnquist) ruled unanimously that claims of executive privilege o
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A lot of the laws you are thinking of regarding recording have to do specifically with telephone conversations. Nixon's recordings were of conversations in his office, meaning that they were not subject to state law, only federal law, insofar as there was any federal law regarding conversation not over the telephone, and DC law. And as others have said, he didn't get in trouble for making the recordings but because he refused to release them because they contained evidence of his misconduct.
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but rather, uploaded.. (an important point, complete leechers have not violated the law)
You might want to re-read the Napster decision, I realize that it is not binding in most jurisdictions, but it is definitely persuasive:
Here is the relevant part of the argument from the 9th Circuit's ruling on Napster's appeal of the preliminary injunction:
"The district court further determined that plaintiffs' exclusive rights under ß 106 were viol
Odd statement... (Score:2)
...At the end of the day, the RIAA may be a lot of things, but a criminal enterprise engaged in racketeering is not one of them.
They draw that statement essentially as a result of the facts that; (A) a large mass of people who have been individually charged haven't coordinated their efforts and (B) their hasn't been an RIAA whistleblower. I would hardly consider that proof of innocence...
What suprises me (Score:2)
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The RIAA, on the other hand, file bunches of indiscriminate lawsuits in a rather scattershot manner. That's about as far removed from the planned, strategic, calculated lawsuits that
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Well, duh! That's the whole point.
The RIAA isn't suing iTunes users, it isn't suing people who buy CD's from Amazon, and isn't suing people who thumb their noses at the RIAA and go see local bands live. You only need be scared if you are downloading songs that, by now, everyone should know are currently illegal (in the U.S., at least) to download and share.
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"Predicate acts" (Score:1, Informative)
Indisrimate extortion of money from dead people, grandmothers and children who don't own PCs aren't predicate acts. Aren't a pattern of criminal activity?
It *is* possible to buy a get (and stay) out
Not wondering (Score:2)
Nope, I'm not wondering at all. But then, I understand the law and don't hurl charges (that I don't understand) against organizations protecting their rights. Heck, unlike most here on Slashdot I appluad organizations trying to uphold the law - even when I don't agree with the law.
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I understand the law
Yet you haven't even considered the possibility that there might be something illegal concerning their tactics?
I appluad organizations trying to uphold the law - even when I don't agree with the law.
You should think for yourself.
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Whether or not there is something illegal about their tactics is utterly irrelevant to my understanding the law.
Again, a statement by you that has nothing to do with my statement.
Ars consults an attorney... (Score:2)
So is Ars Technica trying to get RICO-suave?
[ducking]
RIAA Countersuits: Mail Fraud (Score:5, Interesting)
If there must be explicit causation to bring racketeering charges against the RIAA that revolve around mail fraud, wire fraud, or a set of crimes that net over 1 year in jail, the obvious choice to me is mail fraud.
They have consistently misrepresented the facts they have in hand about any actual person in their "Settlement Offer" letters. These attempt to defraud consumers by making false claims about the evidence they have in hand regarding a particular person's innocence or guilt. These false claims are done for the purpose of self-enrichment.
If I file suit in federal court alleging I think that FamousPersonA is a wife-beater and then send a letter to FamousPersonA saying, "Settle with me and I'll drop the suit", I believe this is a form of blackmail. If I know that I have a larger legal team than they do and can outlast them at trial or in any countersuit, then I have unlimited means to extort money from FamousPersonA. Or, anyone else.
The claims are False because the RIAA purports to have proof of guilt. These are overly confident, overstated positions. They constitute a fraudulent mail scheme. They are individually punishible and form a pattern of intimidation and attempted blackmail.
Re:RIAA Countersuits: Mail Fraud (Score:5, Informative)
"no reasonable expectation of privacy" (Score:3, Insightful)
Yet people get busted for "stealing wifi".
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Yet people get busted for "stealing wifi".
You are conflating two different concepts. Theft of a particular resource has nothing to do with whether or not someone using said resource has any expectation of privacy.
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"I'm not taking the time/trouble to secure [X]."
SEE! He's INVITING US IN! HE'S ALLOWING US TO DO THIS!
NO. Simply because he hasn't explicitly secured something doesn't mean he's allowing you in or inviting you to use said resource.
The concept is the same for both.
Pleading "special circumstances" is bullshit.
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"I'm not taking the time/trouble to secure [X]."
SEE! He's INVITING US IN! HE'S ALLOWING US TO DO THIS!
NO. Simply because he hasn't explicitly secured something doesn't mean he's allowing you in or inviting you to use said resource.
This is a different analogy than the one in your parent post.
However, if you leave your drapes open in your living room, people can see into your living room, and you have n
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No. It's not. If you think it is, you misunderstood (which isn't my fault).
"However, if you leave your drapes open in your living room, people can see into your living room,"
Problem. You don't have to do anything to see into an uncurtained window.
You DO, however, have to do some minimal discovery on a computer system
What constitutes a "reasonable expectation" (Score:1)
I'm not sure I understand a "reasonable expectation of privacy" within this context. I mean, if I leave my garage unlocked so my neighbor can borrow my mower, I expect that if either a thief OR a police officer used the occasion to open the door and poke around inside, that both would be trespassing?
Let's say I've posted a nice large sign stating such, "Private Garage. K
Not everyone is a Kazaa-using Luser ... (Score:2, Interesting)
That's going to be a difficult argument to make, given that Kazaa's default settings give users no reasonable expectation of privacy.
Not everyone uses Kazaa, though. I'm sure there's plenty of geeks out there who use torrents, unpopular p2p clients, etc., who possibly encrypt their harddrives, protect them with passwords, etc.
While the majority of people sued by the RIAA may not adequately protect their material, all we would need would be a few incidences of the RIAA snooping on protected computers to
Wire Fraud? (Score:2)
(See story [slashdot.org].)
frivolous lawsuits, anyone? (Score:2, Interesting)
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That's really irrelevant in this case. The way copyright law is set up in the U.S., when the copyright holder has registered their copyright BEFORE any infringement took place (and all of the record labels do this), you don't have to prove the amount of your damages, you don't even have to prove that you suffered any damages in the first place -- the damages are set