An Oregon Woman's Lawsuit against the RIAA, Alleging Racketeering and Malicious Prosecution:
Why It Is Unlikely to Succeed

By ANITA RAMASASTRY
Thursday, Jun. 28, 2007

Late last week, in the U.S. District Court for the District of Oregon, Tanya Andersen filed a lawsuit against the Recording Industry Association of America (RIAA). In her complaint, Andersen alleges, among other things, that the RIAA and several of its affiliates engaged in malicious prosecution when they sued her for illegal file sharing. (Earlier this month, the RIAA had agreed to dismiss that suit, filed in 2005, with prejudice. The result is that Andersen is the prevailing party in the suit, and potentially eligible for an award of attorney's fees.)

Andersen's suit also characterizes the RIAA and its affiliates as part of a larger criminal enterprise that violated the Racketeer Influenced Corrupt Organizations Act (RICO). In addition, she alleges claims for negligence, infliction of emotional distress, invasion of privacy, and deceptive business practices.

In this column, I will discuss Andersen's claims and explain why they are unlikely to succeed. I'll also contend, however, that the RIAA is, at a minimum, very foolish to press suits for purported file-sharing against unlikely defendants like Andersen - who alleges that she came forward with solid proof of her innocence.

The RIAA's Foolish Suit

The RIAA's 2005 suit against Andersen claimed that this Oregon single mom, who notes that she is also disabled, had illegally shared her library of "gangster rap" over the peer-to-peer network Kazaa. The RIAA allegedly based its suit solely on an internet protocol address (IP) address that it linked to her computer.

From the outset, Andersen denied any wrongdoing, and tried to clear her name. For example, she alleges that she provided the RIAA with the name, location, and phone number of a young man from Everett Washington who she believed was behind the Kazaa account "gotenkito" -- the account the RIAA said was hers, after finding that person on Myspace. She also says she told the RIAA that she listens to country music and soft rock. She had details of her music prior purchasing history from CD clubs operated by the major record labels. She says she'd never listen to "misogynistic" rap such as the song "Hoes in My Room," which the RIAA insisted she'd shared on Kazaa

Andersen alleges, finally - and perhaps most outrageously -- that the RIAA tried to contact her then-seven -year-old daughter without her knowledge in order to question her. She also claims that the RIAA demanded a four-figure settlement to resolve the case when it knew or should have known that she had done nothing wrong.

Will Andersen's RICO Claims Succeed? And What about a RICO Class Action?

The history of file-sharing litigation shows that this is far from the first time the RIAA has named the wrong defendant. This is, however, only the second time RICO claims have been made by a defendant in a file-sharing case; the other case was Sony v. Scimeca from 2004

If other wrongly-named defendants and former defendants follow Andersen's lead, and go on the offensive, the result could be a RICO class action against the RIAA. That suit would be costly to defend, but probably ultimately would not succeed.

That's because RICO's requirements are difficult to meet when the defendant is not part of organized crime. Combating the Mafia and like entities was the statute's original purpose, and it's unlikely that the RIAA - however aggressive - fits into that category. The FBI defines "organized crime" to include "any group having some manner of a formalized structure and whose primary objective is to obtain money through illegal activities." (Emphasis added). Given that the RIAA has also filed many valid copyright-infringement suits, it would be very hard to argue that its primary objective is to extort money from innocent people wrongly accused of file-sharing.

Of course, RICO's language does not actually require Mafia or Mafia-like defendants, and it's been used successfully, at times, by the government against non-Mafia defendants, such as unions. Still, a court will likely be reluctant to call a music industry group with much legitimate litigation, and some litigation that crossed the line, an enterprise that has engaged in a pattern of racketeering-- which is what RICO does require.

Andersen claims that the RIAA committed extortion when it sought $150,000 per infringement from her, but a court also may be very uneasy to blur the line between true extortion (such as the knuckle-breaking kind) and outrageous money demands in meritless litigation - which courts see all the time. Moreover, a court may be similarly uneasy with Andersen's characterizing the sending of aggressive letters to plaintiffs as "mail fraud."

Could Andersen's Malicious Prosecution Claims Succeed?

What about the malicious prosecution charges Andersen makes? It too may be difficult to prove. To prevail, Andersen will have to show that the RIAA intentionally went after her without probable cause -- causing great harm to her in terms of monetary cost and emotional distress. The harm to her seems clear, but what about the RIAA's intention?

Legal experts in the area have expressed the opinion that without a "smoking gun" - evidence from an insider showing that the RIAA wouldn't back down in the Andersen case even when it was sure she was innocent - the claim won't succeed.

Other experts have noted, however, that if various RIAA plaintiffs were to band together, they might be able to show a pattern of malicious prosecutions, and thus create a case stronger than Andersen's would be alone. A strong pattern might arguably take the place of an actual "smoking gun" in showing the RIAA's institutional state of mind. Still, the RIAA would have a strong defense: Given the sheer volume of infringement, and the organization's aggressive stance and voluminous litigation, it could contend that errors are bound to occur.

Whether or Not Andersen's Suit Succeeds, the RIAA is Foolish to Persist in the Face of Strong Evidence of Defendants' Innocence

Several things are clear as a result of the Andersen case: First, when the RIAA receives evidence of innocence in the future, in its file-sharing cases, it should take a good, hard look at it. Second, the RIAA should be very careful about contacting children without their parents' knowledge. If, indeed, its investigators did what Andersen says, and tried to speak to her then-seven -year-old without telling her, then that is deplorable.

Failing to do what common-sense requires, in Andersen's case, has only led the RIAA to garner lots of bad publicity. In the end, too, the RIAA may need to both pay Andersen's attorney's fees in the case it dropped, and offer her a substantial settlement in her RICO/malicious prosecution action. That's because, while I believe Andersen's case will be hard to win, she may well be angry enough to push it forward despite obstacles - and every moment the case exists, the RIAA's attorney's fees may be mounting.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.