Mom Turns Tables in Music Industry Lawsuit
or A Taste of Your Own Medicine
By Kevin Coughlin, New Jersey Star-Ledger

The music industry considers Michele Scimeca a pirate. The Morris County mom has her own term for record executives:

Racketeers.

In what legal experts described as a novel strategy, Scimeca is citing federal racketeering laws like the one that jailed mob boss John Gotti to counter-sue record labels that accused her in December of sharing some 1,400 copyrighted songs over the Internet.

The Rockaway Township woman, who claims she was targeted for her teenager's school research project, is among hundreds of individuals sued by the music industry since last summer. Another 531 computer users were sued yesterday in "John Doe" suits filed in Trenton, Atlanta, Philadelphia and Orlando.

Labels are using "scare tactics (that) amount to extortion" in efforts to extract settlements, Scimeca alleges in legal papers sent to the U.S. District Court in Newark.

It would seem that her use of the RICO act has at least as much validity as the RIAA's preposterous charges. If the RIAA,

1. actually paid their artists fairly,
2. did not have a monopolistic stranglehold on the music industry that prevents entry by all but those few artists that they select,
3. had not purposely misrepresenting facts and figures so as to lay the blame for their decrease in profit at the feet of file sharing,
4. was targeting the people who were sharing thousands of songs online,

I might say they were in the right. This is not the case however. They cheat their artists, quash competition, blame lost profit on file sharing rather then crappy music, and target "hardened criminals" such as grandmothers and underprivileged honor students. The RIAA is a dinosaur who's time is nearing its end. If the RIAA wants to continue to profit off of the toil of its artists, they had better shift their paradigm.

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"They're banding together to extort money, telling people they're guilty and they will have to pay big bucks to defend their cases if they don't pony up now. It is fundamentally not fair," Scimeca's lawyer, Bart Lombardo, said yesterday. The Cranford attorney said he occasionally downloads songs for personal use and sees nothing wrong with that.

The counterclaim seeks unspecified damages from Sony Music Entertainment Inc., UMG Recordings Inc. and Motown Record Co. L.P. Their lawyers in Los Angeles referred requests for comment to the Recording Industry Association of America. "We stand by our claims," the RIAA said in a prepared statement.

Scimeca's case appears to be the first use of federal racketeering laws in the music copyright wars, said Cindy Cohn, legal director for the Electronic Frontier Foundation, an Internet advocacy group. Most defendants are paying music labels $2,000 to $10,000 to avert costly trials, Cohn said.

"It strikes me as a very innovative use of the law. Very innovative," said Gregory Mark, a law professor at the Rutgers School of Law-Newark.

The Racketeering Influenced & Corrupt Organizations Act, or RICO, was enacted in 1970 to prosecute organized crime and help victims seek compensation. But over the years it has been invoked, with varying success, in connection with alleged conspiracies ranging from GOP fund-raising to sexual abuses by Roman Catholic clergy.

AT&T cited the same laws when accusing WorldCom of phone fraud. In a case that reached the U.S. Supreme Court, the National Organization for Women unsuccessfully used RICO against an anti-abortion group.

That case hinged on an interpretation of the Hobbs act, a 1946 law aimed at thwarting gangsters from extorting interstate truckers. Scimeca's case also cites the Hobbs act: Paying the music labels would deprive her of money she could spend on interstate commerce, her lawyer explained. Because the so-called extortion papers were delivered via the postal system, and potentially affect Scimeca's bank account, her countersuit also cites mail- and bank fraud laws.

In December, the labels produced 41 pages of copyrighted songs from Pearl Jam, Korn, Godsmack and other artists, which they said were offered for illegal swapping over the KaZaA network by "DrEeMeR."

Scimeca told The Star-Ledger that was the screen name used by her 13-year-old daughter, a high school freshman, for a school project. But the family's Optimum Online Internet account was registered to the mother, whose name was handed over by Cablevision. An unrelated court ruling recently made such information harder for labels to obtain. So now they are filing John Doe lawsuits based on Internet addresses.

Scimeca said at the time that she and her husband could not afford copyright penalties of up to $150,000 per song. "Ignorance of the law is not a defense," admonished the notice she got from the labels' lawyers, who added that Scimeca's liability was clear and she should consider settling.

Scimeca's case may raise a valid question: Can labels take collective action against file-swappers? But her lawyer must convince U.S. District Court Judge William Martini that it merits a jury trial, said Mark, the Rutgers professor. "The hurdle is getting to a jury," Mark said.

A group in California tried using the RICO law to stop DirecTV from threatening people it suspects of stealing satellite services. But the company successfully argued its letters were protected free speech under a state law, said Jennifer Stisa Granick of Stanford University's Center for Internet & Society.

posted by awiggins | 02:23 PM