Oregon Woman's Suit Against RIAA over Investigative Techniques and Litigation Tactics
Any time one party sues another for an intellectual property violation, it needs to consider the possibility that it may be required to pay the defendant's attorney's fees in the event the lawsuit is unsuccessful. As an example of this, the CounterfeitBlog reported on Friday on the Foster case in which an Oklahoma federal judge required the RIAA to pay attorney's fees to a woman it had sued for illegal file sharing.
There is also a small risk that, if a party files an unjustified lawsuit against another, the defendant will sue the plaintiff to recover damages allegedly caused by the unjustified suit. The American courts generally are not receptive to such damage claims because they run counter to the strong principle in American jurisprudence that parties have a right to resort to the courts even if they ultimately lose.
Just such a claim was filed June 25 against the RIAA and its investigators by Tanya Andersen, an Oregon women who was sued by the RIAA in 2005 as part of its campaign against illegal peer-to-peer sharing of pirated music. On July 1, after two years of litigation, the RIAA voluntarily dismissed its lawsuit against Andersen. She promptly filed an independent action against the RIAA, Atlantic Records, Capitol Records, UMG and BMG, and several companies that assist them in their investigations and enforcement efforts, Safenet, Inc., Media Sentry, Inc. and the Settlement Support Center. Andersen's lawsuit claims that the investigative and litigation tactics used by the RIAA and its investigators are unlawful and have caused her physical and psychological injury. To read the Complaint (which was filed with the Court in two parts due to system constraints), click here and here.
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Andersen's Complaint alleges that: (1) the RIAA's investigators were not licensed to conduct private investigations in Oregon, where she resides; (2) the investigation unlawfully accessed and took information from her computer; (3) the information that the investigators collected was inadequate to enable it to identify the specific individual who used the computer or to determine whether the files found on the computer are "copyrighted recordings, bogus or inoperative files, or decoys from lists of file names collected on 'screen shots'"; and (4) as a result of using these investigative techniques, the RIAA has "filed and dismissed meritless cases across the country after being forced to admit that they had sued the wrong people," including the suit it brought against Andersen.
Many of the Counts asserted in Andersen's Complaint appear on their face to be legally insufficient. For example, Andersen asserts a claim for copyright misuse. It is generally held that copyright misuse is a defense that can be raised in an infringement action, but not a legal basis for an affirmative claim. If, as the CounterfeitBlog expects, the RIAA moves to dismiss the Complaint on the ground that Andersen's Complaint fails to state a claim for relief (i.e., that the asserted causes of action are not recognized under the law), many of the Counts are likely to be stricken. The question is whether they will all be dismissed or if the court will rule that Andersen's allegations, if proven, do form a basis for legal action under at least one of Andersen's asserted legal theories.