Time for the RIAA to face the music in court!

I can't wait.

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Andersen attorney on RIAA suit: "They can't run now"

By Eric Bangeman | Published: March 13, 2008 - 11:00PM CT

Friday may mark a significant milestone in the RIAA's legal campaign against file-sharing, as it is the deadline for exonerated RIAA defendant Tanya Andersen to refile her malicious prosecution lawsuit against the record labels. Soon afterwards, discovery will begin, and all sorts of unsavory details about the RIAA's legal campaign against suspected file-sharers are likely to emerge.

Andersen is a single mother living in Oregon who was sued by the record labels in February 2005. She eventually filed a counterclaim against the RIAA, and when the labels voluntarily dismissed their case against her last June, she filed a malicious-prosecution lawsuit. In it, Andersen accuses the RIAA of fraud, racketeering, invasion of privacy, libel, slander, deceptive business practices, and violations of the Oregon state RICO Act.

Last month, a federal judge dismissed Andersen's original complaint, saying that she had "not adequately stated claims for relief," but gave her a one-month window to refile. Her attorney, Lory Lybeck, told Ars that he plans to file a new 80-page complaint tomorrow. "The focus of the amended complaint is essentially the sham litigation and abuse of the federal judiciary to operate this criminal enterprise that has harmed Tanya Andersen and thousands of other people," Lybeck said.

With a new complaint, the case is certain to move forward into the discovery phase, as the judge has told both sides that she would not entertain any further motions to dismiss this case. It's an uncomfortable place for the RIAA to be in.

"Usually, the parties are entitled to liberal pretrial discovery of anything related to the subject matter of the case," copyright attorney Ray Beckerman told Ars. "So the scope of the amended complaint will have a big impact on what is and what is not discoverable."

Tanya Andersen

Lybeck tells Ars that he'll be digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.

One of the allegations in the amended complaint will involve MediaSentry's status as a private investigator. "MediaSentry claims it is able to gain access to people's hard drives without their permission and collect information," notes Lybeck. "It's illegal because they're not licensed to do that work."

The amended complaint and subsequent discovery will also focus on what Lybeck calls the "flawed nature" of the RIAA's investigations. "We know [the RIAA] cannot identify individuals," he says in response to a question on false positives. "We want to know how many dolphins the RIAA is catching," referring to a former RIAA spokesperson's 2003 comment about accidentally catching a few dolphins when fishing with a net.

The RIAA is likely to fight the discovery process tooth and nail, however, as the information that is unearthed could prove to be extremely embarrassing, if not problematic. "They've operated in this zone of secrecy for five years now, and we hope to put a stop to that," Lybeck stated emphatically, "because it will become obvious that their conduct is illegal an their whole scheme is flawed at its basic core."

RIAA lead counsel Richard Gabriel
after the Jammie Thomas trial

So far, the RIAA's attorneys have been uncooperative on discovery issues, according to Lybeck. He says that he has reached out to RIAA lead national counsel Richard Gabriel, who was argued the labels' case in the Jammie Thomas trial, in order to move the process forward. "He's refused," Lybeck said. "I assume we're going to run into the same stall and delay tactics."

Gabriel took issue with Lybeck's characterization, accusing him of making "false statements" about his conduct. "As I discussed with Mr. Lybeck, the Court dismissed all 13 of his client's claims," Gabriel told Ars. "As a result, there are no claims pending at the moment, and his request to schedule discovery is premature. We are eager to resolve all outstanding issues in this case and look forward to doing so in a rational way that follows the process outlined by the Court."

The judge has barred further motions for dismissal, so unless the RIAA decides to settle—a move Lybeck believes is in the group's best interest—the case will proceed through discovery and to trial. Unlike the thousands of lawsuits filed so far, the RIAA does not have the luxury of walking away from this case if there's a real chance of embarrassing information being released. "Once discovery happens in the cases the RIAA brings, they run," Lybeck says. "This is our case now, and they can't run."
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