A proposed federal lawsuit by a woman in New Jersey alleging racketeering by major music labels is “preposterous” and has little chance of prevailing, entertainment industry lawyers tell TechNewsWorld.
The forthcoming lawsuit by Michele Scimeca, said to be a countersuit against members of the Recording Industry Association of America (RIAA), comes as the woman tries to fight off a claim that she allegedly uploaded 1,400 copyrighted songs over the Kazaa peer-to-peer network.
The woman claims her 13-year-old daughter downloaded the songs for a school project.
“The suit, at least on its face, is absurd,” Thomas G. Field, Jr., a professor of law at the Franklin Pierce Law Center, a leading law school, told TechNewsWorld in an interview.
Another lawyer, leading entertainment law attorney Jay Cooper of the Los Angeles office of Greenberg Traurig, told TechNewsWorld that the lawsuit is “preposterous.”
Illegal To Steal
“It’s so obviously illegal when someone steals another person’s property. Of course they have every right to sue,” added Cooper, who is the former president of the National Academy of Recording Arts & Sciences and the California Copyright Conference.
An entertainment law attorney with Chadbourne & Parke, Michael Graif, said he “agrees” the proposed suit probably has no merit.
Word of the forthcoming lawsuit emerged earlier this week when a media industry trade magazine reported Scimeca had filed a lawsuit under the antimobster statute, the Racketeer Influenced & Corrupt Organizations Act, commonly known by the acronym RICO.
A call by TechNewsWorld to the clerk of the U.S. District Court in Newark, New Jersey, on Friday, February 20, 2004, however, indicated that Scimeca still has not formally filed the claim. In the conversation, the court clerk said that Sony Music Entertainment, UMG Recordings and Motown filed a lawsuit against Scimeca on December 3, 2003, under the U.S. Copyright Act.
The court clerk said the last filing in the case was on February 9, 2004, by Scimeca, “making an application to extend time” to file a response to the Sony suit.
Burden of Proof
U.S. District Judge William J. Martini has been assigned to hear the original complaint, whose case number is 03CV5757.
The burden of proof in a racketeering case is quite high. According to lawyers, before civil liability can emerge under the racketeering laws, the complainant must demonstrate that the culpable person has committed two or more acts of racketeering.
The racketeering must include two unlawful acts, usually involving intimidation, violence or fraud.
Mobsters and thugs who interfere with interstate commerce are the targets of the federal statute under which Scimeca may bring suit. The law was passed in 1970 to prevent racketeering.
To be sure, to a regular person, receiving a letter about a lawsuit from a lawyer might feel like an act of intimidation, but, if the case is based on facts and supported by law and evidence, no judge would ever likely agree that it constituted an act of racketeering, lawyers say.
Parents Liable for Kids?
Scimeca may have a defense to the lawsuit by the music companies, however. If her child was the individual who downloaded copyrighted songs illegally, and was not acting as the agent of the mother, the mother might not be liable. “I doubt that parents are liable if kids shoplift, for example, although they might lose custody if the situation is egregious,” said Field, the law professor.
But lawyers from the music companies could defeat an argument like that by demonstrating that the mother was the party who paid for the online access and was responsible for the activity on the account. Lawsuits by the record industry are being used to stop the dramatic decline in sales of recorded music, said to be 45 percent of volume during the last four years, and said to be a factor pushing music makers and distributors, such as Tower Records, into bankruptcy or insolvency.
The right of artists to copyright work is guaranteed by the U.S. Constitution. But the suits by the music industry are not popular among many devotees of file sharing.
“Litigation is their Prozac,” said Wayne Russo, CEO of Optisoft, a developer of P2P technology, located in Madrid and London. “They’re just not happy unless they’re suing somebody.”
Legal experts, however, said the lawsuits are having the desired, deterrent effect on illegal file downloaders.
“Lawsuits are an effective way to make people aware of the problem,” Dan Penning, managing partner at the law firm of Wright, Penning & Beamer, located in Detroit, told TechNewsWorld.
“As a casual user or violator, the lawsuits are effective because they cut down on the risk a casual user is willing to make in order to steal music,” he said. “Legal action is a major deterrent, as well as the risk-cost factor associated with illegal file-sharing.”