From Wired News’s Threat Level blog:

A federal judge is awarding Tanya Andersen, who defeated the Recording Industry Association of America’s file sharing lawsuit, $108,000 in legal fees to compensate for defending herself against the RIAA.

The award, made public Wedesday by U.S. District Judge James A. Redden of Oregon, marks the second time that a target of the RIAA who beat a lawsuit was awarded attorney’s fees. In August, a federal judge ordered the RIAA to pay $68,685 in litigation costs to two Oklahoma women whose case was dismissed.

Whether RIAA defendants who successfully defend such suits are automatically entitled to legal fees is on appeal to the U.S. Supreme Court. The dispute is whether judges must award fees to a prevailing party under the Copyright Act.

Yesterday, the RIAA withdrew one of its many cases against legal file sharers, instead of facing the potential of getting its little legal nose spanked on the “making available” issue in front of a pesky judge. (This is the state of affairs where it can get file-sharing judgments against people without actually showing that they, you know shared files—that they just made files available.)

Details on that case, Warner vs. Cassin, here.

Today, the organization refiled the same suit against the same family, without telling the new judge it had withdrawn the old one.

Details at Ray Beckerman’s intrepid Recording Industry vs. the People blog.

From a Canadian news service, a story that says the Canadian government is secretly participating in “negotiations”—apparently with the U.S. and the E.U.—to create a copyright trade union:

The deal would create a international regulator that could turn border guards and other public security personnel into copyright police. The security officials would be charged with checking laptops, iPods and even cellular phones for content that “infringes” on copyright laws, such as ripped CDs and movies.

The guards would also be responsible for determining what is infringing content and what is not.

Read down and the story says that the agreement will probably be “tabled” at an upcoming G8 summit, but the implications are disturbing. It’s not an exclusively Canadian story; the report, which it says was based on “leaked documents,” seems to indicate that the agreement, if completed, will subject any traveler between the U.S., Canada, and the E.U., to this sort of scrutiny.

Since there’s no easy way to determine whether a particular song or movie has or hasn’t been ripped legally, the opportunities for abuse aren’t just legion; they would be inherent in any enforcement at all.

Less than a month ago, a federal district court in New York ruled on a contentious issue in the RIAA’s grim legal campaign against online file-sharing. A lot of folks have a file-sharing program like Kazaa running, and copyrighted songs sitting in their shared folder, ready to be uploaded. The RIAA’s position: That offer to swap is a crime in and of itself.

In the Elektra v. Barker case in New York, earlier this month, the court agreed.

Now comes a federal district court case in Arizona in which … a judge ruled precisely the opposite way.

Cnet’s story is here, Ars Technica’s here.  A gleeful press release from the Electronic Frontier Foundation, which is working on the case, is here. From Ars:

“The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public,” wrote the judge in his order. “Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”

In both of these cases, and others on the same topic, the rulings aren’t final; they are merely housekeeping issues in response to motions for summary judgment and the like before the real trials begin.

Business Week throws some reporting power at the story behind one of the RIAA’s suits against file-sharers. It’s the seamy case of Tanya Anderson, who is a 45-year-old single mom living on disability in Oregon. The Anderson case has been a poster child in the protests against the RIAA’s Soprano’s-style tactics.

The RIAA uses an investigative company, MediaSentry, to round up IP addresses of file-sharers off the internets. It then extracts the names of the corresponding users from the companies that provide internet service, and then sends notes to the users, saying they’re about to be sued. Then it funds a debt-collection-style phone bank, which starts to dun the users with calls, trying to get them to settle the case before trial, generally for $4000 or $5000.

The RIAA seems to have made a mistake in Anderson’s case, and their tactics were reprehensible from top to bottom. Here’s just one example:

Over the next few months, [lawyer Lory R.] Lybeck and the record industry tussled over Andersen’s computer. The court ordered Andersen to hand over the computer, and the RIAA took it to an expert so it could be searched for signs of music piracy. But then the industry’s lawyers refused to release the expert’s report. Ultimately, Donald C. Ashmanskas, the U.S. District Court judge overseeing the case in Portland, ordered the RIAA to turn over the information, which it did in January, 2007. The result? No evidence of piracy.

There’s a happy ending, too:

Lybeck was convinced his defense was airtight. On May 14, he asked the Portland court for summary judgment. Ashmanskas gave the RIAA until June 1 to provide more evidence linking Andersen to the alleged infringement. In the week leading up to the deadline, the RIAA told Andersen it would drop its case if she agreed not to pursue counterclaims. She refused. Finally on the deadline, industry lawyers dropped the case without conditions and agreed not to sue Andersen again.

Worth reading. All that said, I thought one part of the story didn’t fit. For one, Anderson admits she had downloaded KaZaa onto her computer, though according to the story she didn’t use it:

As Andersen and the attorney prepared their defense in 2006, his conviction grew. Yes, Andersen had installed on her computer a software program, KaZaA, for sharing music over the Net—one reason the RIAA suspected her. But Andersen deleted the program after a few months and didn’t appear ever to have used it. Plus, some of the music Andersen had supposedly shared online just didn’t fit her taste. The songs included rap tunes with titles like “I Stab People” and “Dope Nose.”

An innocent single mom in Oregon, living on disability… who at some point knew enough about computers and file-sharing to download Kazaa to her computer. And if the RIAA got on her trail, it’s possible that she was actually running the program. It doesn’t quit fit. Her daughter, eight at the time she was sued, doesn’t seem to be a factor, but the story doesn’t ask the question of whether Anderson had ever let friends use her computer.

That aside, no one deserves to go through what Anderson did. Here’s what she told p2pnet in an earlier story:

Through this lawsuit, I’ve been humiliated, embarrassed, shamed, and my privacy has been greatly violated by the other side.

They not only deposed my 10-year-old daughter, but, deposed my grown step-kids (who I’ve long been divorced from the father), friends, etc.

At one point, they even tracked down and called my new landlord. I had been living here for only one month. They’ve asked and investigated quite a bit of extremely personal information, which was very humiliating.

As you know, I never did what the RIAA accused me of. There was no need for this lawsuit to ever even take place. I did everything humanly possible from the day I received the first letter to tell them there was a mistake. I even offered for my computer to be looked at from the beginning. They didn’t want to listen. I’ll never under why they continued to put me through the drug out nightmare that they have.

———–

Business Week: “Does she look like a music pirate?” [Link via Slashdot.]

The debate about the war on file-sharing isn’t entirely clear-cut. You can see how certain corporations, used to having complete control over the media they produce, are chagrined at a world that, suddenly, treats that media like water, and lets it flow anywhere, any time.

You can see why artists, with an officially Constitutional, if limited, right to profit from their work suddenly lose de facto control of that as well. And you can even concede that, in the end, it probably is illegal to leave hundreds of copyrighted music or video files on your computer for anyone else to download.

All that said, the war on file-sharing is still wrong. A new study, reported on by Ars Technica today, gives an illustration why.

Briefly, the findings are that, in a survey of more than 1.5 million computers, more than a third were found to have LimeWire on them. LimeWire is the most popular file-sharing application; there are many others. Second, it says that BitTorrent use has grown 25 percent in the last six months.

More on the significance of those figures in a second.

The methodology for the survey seems to come from a company that removes adware and spyware from computers. How that might affect the sample is hard to assess. Folks smart enough to run file-sharing programs would presumably know how to run anti-virus programs; on the other hand, since file-sharing applications are often a source of spyware and adware, it’s possible the sample self-selects to people who file-share a lot. Indeed, while Ars doesn’t say it, it seems from some accompanying graphs that file-sharing applications of one form or another appeared on a total of nearly 80 percent of the PC’s examined. That number seems quite high.

However, in some notes accompanying the survey, one of the people who ran it acknowledges the difficulties of getting good data, but points out that given the size of the sample and the consistency of the analysis over time, it has particular insight when it comes to tracking changes in usage.

That’s the sobering part:

1. Even if the sample is skewed by 50 percent, an installation base of 36 percent for just one file-sharing protocol, LimeWire, demonstrates how fruitless the RIAA’s legal war is; even thousands of mass suits against a user base that may number in the tens of millions is senseless. It seems puny, and petulant.
2. But the BitTorrent numbers are simply devastating. In a traditional file-sharing program like LimeWire, files are shared person-to-person. (That’s where the name “peer-to-peer,” comes from, often abbreviated P2P.) “Torrenting” is often called file-sharing on steroids, but it’s conceptually different. With a program like BitTorrent, a large number of “seeds” torrents the files in pieces around the net, so you can download it simultaneously from many other places, making for vastly shortened download times. On BitTorrent networks, people don’t swap single songs; they swap albums or, increasingly large “discography” files, containing all the released albums of a particular artist. And then, of course, it’s also a powerful tool for exchanging video files, which are much larger than mere songs..
3. In other words, the move toward torrenting may represent an increase in file-sharing by an order of magnitude. It’s impossible to really put figures to such trends, but it’s possible that just the 25 percent increase in BitTorrent use in a particular period could equal several years’ worth of filesharing under LimeWire-style programs of the past. In this context, the war on file-sharing in the music world is already over; within just a few years it will be common easily to swap entire record libraries or more, and people will soon have more music on their computers than they can realistically hope to ever listen to.
4. And the growth suggests one other thing as well: The same will soon be able to be said about the TV and film world.

“For nearly three years of her life, Tanya Andersen and her young daughter were subjected to an outrageous series of baseless accusations and unrelenting threats of financial ruin.”

Well, it’s not Kafka but it’s fun reading nontheless. It’s the first line of a 110-page legal brief, the opening shot in a class-action suit against the RIAA’s jihad against file-sharing. (Link via Slashdot.)

Tanya Andersen is the fortysomething mother of a ten-year-old; the RIAA says she downloaded “Fuck Y’all Hoes” and other songs. It seems the company made a mistake in her case, but Andersen’s protests, according to the brief, were never given creedence. She filed a malicious persecution suit against the RIAA, and that action is now being proposed as a class action.

The rest of the first graf of the brief lives up to its first sentence:

For nearly three years of her life, Tanya Andersen and her young daughter were subjected to an outrageous series of baseless accusations and unrelenting threats of financial ruin. The world’s four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music. The enterprise is conducted with total disregard for innocent individuals. Dead people have been sued. Children have been sued. People without computers have been sued. As a senior RIAA spokeswoman explained: “When you fish with a net, you are going to catch a few dolphins”. By their own early admission, they were knowingly engaged in a “driftnet fishing” operation and “innocent dolphins” were the collateral damage in their “nets”.

But it’s really not about the dolphins. The case is against the entire operation. Basically, the filing portrays it this way:

1) The RIAA, through a company called MediaSentry, sweeps the file-sharing networks and logs the IP addresses of users with copyrighted material in their sharing folders. (The IP address is basically a unique number the computer gives itself to identify itself on the Internets.)

2) It then files mass “John Doe” lawsuits against, essentially, the IP numbers, and subpoenas the users’ internet service providers en masse to get their names.

3) The organization then sends the users demand letters, saying essentially “you have already been sued,” and demanding a $4,000 or $5,000 fine within ten days.

4) According to the filing, the organization says it has proof the user committed copyright violations and that he or she could owe “hundreds of thousands of dollars or more to the RIAA.”

4) The RIAA then sets up a boiler room staffed by retired police officers to make follow-up calls to get them agree to the fine.

5) The organization then proceeds with the bulk lawsuits against anyone who doesn’t settle.

The filing’s overheated prose is exceedingly enjoyable to read even when it’s almost incomprehensible. (“The RIAA’s primary function is to act however it decides is necessary to maintain its monopoly.”) And it’s hard to argue with the suit’s overarching themes:

[T]echnology advances during the last 10 years have rendered [the RIAA’s] antiquated model for music production and distribution virtually useless and obsolete. MP3 music storage
and players are now over 10 years old. Musicians can now self-publish, self-produce and
distribute their art to their fans and customers without the burden of the enormous and unfair
payments demanded by the RIAA companies. Music consumers can buy only the music they
want. The actions of the RIAA and the Big 4 in their desperate attempt to maintain their
monopoly have caused great harm to the courts, consumers and significantly to the artists they
purport to represent.

Not everything in the filing makes complete sense: The reason MediaSentry, for example, can peer into file-sharers’ hard drives is that the very nature of file-sharing leaves those drives open to inspection. In effect, a program like LimeWire says, “Hey, Joe’s computer here has the new Beck album if you want to download it.”

Hard to complain if someone comes along and points out that it might be illegal to do that. It’s sort of like a fence caught selling hot goods at a garage sale who then argues the cops needed a search warrant.

That said, the filing also bangs at a couple of other seeming vulnerabilities in the way the RIAA has manhandled the court system. For one, judges already have thrown RIAA suits out on the grounds that MediaSentry wasn’t licensed to do the investigative work that produces the IP addresses. And still to be resolved is the question of whether merely having downloaded songs available for downloading (as opposed to being caught in the actual act) is criminal in and of itself.