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No pause in music industry’s tough play

Bob Moon Sep 17, 2007


KAI RYSSDAL: At the time you probably didn’t think much of it — if you even noticed it was happening. But four years ago this month the recording industry got serious about illegal file sharing. Since September 2003 big music labels have pressed their case with lawsuits by the thousands. Back then the industry said it was hoping to scare off an estimated 4 million music-sharing fans. Today that number has more than doubled to around 9 million people using file-trading sites. The industry insists its lawyers are keeping a lid on what it calls songlifting.

In the first of a series of special reports, our Senior Business Correspondent Bob Moon discovered even those targeted by mistake get no reprieve.

Bob Moon: Meet Tanya Andersen, an Oregon woman accused by the recording industry of being a flagrant online distributor of illicit music. She’s 43, and gets by with the help of Social Security.

TANYA ANDERSEN: I’m supporting my daughter. I’m a single mom — and really scared.

Since 2004, she’s been caught up in legal limbo with the nation’s recording industry. It all began with a letter, warning that she had breached undisclosed copyrights and owed hundreds of thousands of dollars. At first, she thought it was a scam, until she phoned someone at what the industry calls its “settlement support center.”

ANDERSEN: You know, I told them, “Look, take my computer. Look at that. I can prove to you I didn’t do this.” And he said, “What do you guys expect us to look at everyone’s computers that says they’re innocent?”

The first lawyer she consulted offered some advice that turned her stomach:

ANDERSEN: “Just let ’em take a judgment against you and file bankruptcy.” And I told him, “Why should I have to do that? That’s not fair.” And he said, “I didn’t say it was fair. It’s how you have to deal with those people.”

So it was back on the phone to the “settlement center,” where she says a support rep listened sympathetically.

ANDERSEN: He ended up telling me, “Well, you can write a letter to my bosses, but no guarantee. Once they start a lawsuit, they just don’t back off.”

LORY LYBECK: And that’s when her life went down the rabbit hole.

That’s Lory Lybeck. Andersen’s lawyer:

LYBECK: Lo and behold, somebody shows up at her door with a federal lawsuit, saying “We’re going to ruin you. We’re going to sue you for over a million dollars.”

He bases that on the industry’s past demands for up to $750 per song. He says Andersen was accused of trading 1,046 music files.

Lybeck responded with a counterclaim in the fall of 2005, and Andersen says after that things really got ugly. It was right around the time she moved to a new home, and her apartment manager got a call:

ANDERSEN: He told them he couldn’t release my personal information. They told him that he would either give it to them or he was going to get in a lot of trouble. It terrified me. Come to find out, they were trying to serve Kylee.

Her daughter, who was just 7 years old when the file-sharing supposedly happened. Andersen’s lawyer says he was able to confirm that call came from the recording industry’s law firm. What remains a mystery is something else that he says happened around the same time:

LYBECK: Calls were made to Kylee’s elementary school, under the pretext of somebody calling saying they were Kylee’s grandmother, and was she there that day? I haven’t tracked that call directly back to the law firm, but it was most disturbing, especially since Tanya checked, and grandma made no such calls.

The head of the Recording Industry Association of America refused to comment on any specific case, but Mitch Bainwol did tell us this.

MITCH BAINWOL: I would remind you that folks, when they have a legal dispute, often can be creative with the way they portray the facts.

In March of this year, a judge cleared the way for recording industry lawyers to question Kylee Andersen over the protests of her mother.

ANDERSEN: I felt threatened. I felt fearful. I felt like my parental rights had been violated, that they could just come in and say, “We’re going to bring your daughter in here.” It’s sick. You know, I think it’s disgusting, and I don’t know how those people can sleep at night doing what they’re doing. I really don’t.

The RIAA insists it uses great care in handling the cases it files. It sent us a statement acknowledging what it terms some “isolated incidents.” It won’t talk about the tactics attorney Lory Lybeck accuses the industry of using in Andersen’s case.

LYBECK: It would seem every time she announced her resolve to say, “No, you’re not going to do this to me,” they would ratchet up the abuse a level. Imagine, you have a daughter who was 7 years old at the time, may have listened to Barney, did not use the computer, but they insisted on taking her deposition.

MOON: And they were accusing her of downloading such songs as “Dope Nose,” “Bullet in the Head,” “I Stab People” and “Shake That Ass Bitch,” and worse.

LYBECK: A lot worse, and you haven’t read them on the radio, nor can you.

It seemed to make no sense, until he figured out, he says, that the file-sharing account Andersen was accused of using actually belonged to a man almost 200 miles away. Lybeck says it should have been immediately obvious to anyone who bothered to check. He was able to find it out with a simple Google search. And even then, the case dragged on several months more.

LYBECK: It ended when they finally decided that they couldn’t keep the charade up any longer. When the federal court forced them to put up or shut up, they quit.

Leaving his client, he says, to deal with tens of thousands of dollars in legal bills. The Electronic Frontier Foundation’s Fred Von Lohmann says Andersen is now in the same bind as almost everyone who’s challenged the RIAA.

FRED VON LOHMANN: “OK, we’ve won, we want you to pay our legal fees. You dragged us through all of this for nothing.” And the recording industry continues to fight tooth and nail. Their attitude is, “We shouldn’t have to pay for your lawyers, even if it turns out you weren’t the right person.”

Von Lohmann says for the first time, there are signs of some cracks in the RIAA’s strategy. In recent days, a judge forced it to pay an Oklahoma woman’s $68,000 legal bill.

VON LOHMANN: One of their spokespersons once said, “Sometimes when you go fishing with a driftnet, you catch a few dolphins.” And that, I think, really is their attitude about that.

We asked the industry group’s chief executive Mitch Bainwol if he feels any obligation to set that right:

MITCH BAINWOL: We feel a responsibility to exercise this program in the most reasonable fashion we possibly can. And, uh, I will leave it there. We are very careful, and if somebody has a compelling case that suggests that they might be a dolphin, then we’ll look at it.

As for the organization’s claim that these cases are isolated? On the opposite side of the country, New York City attorney Ray Beckerman runs a website tracking the cases of many defendants who claim their innocence — including one of his own:

RAY BECKERMAN: I have a client with multiple sclerosis, gets around with an electric wheelchair, has no real understanding of what this is about, had nothing to do with any file-sharing, knows nothing about it. And they will not drop the case against her.

A doctor was appointed as that woman’s guardian and certified she’s unable to make decisions in her case. RIAA lawyers remain skeptical, though, and they’re pressing the judge to proceed. Beckerman says their tactics speak for themselves:

BECKERMAN: They have absolutely no heart whatsoever, and I don’t know how they live with themselves.

Tanya Andersen says it could happen to anyone.

ANDERSEN: This is just really wrong that they can get away with doing this. Just walk into somebody’s life and put them through this. It’s not right. They’ll continue doing this as long as people don’t fight.

Andersen is now seeking class-action status for her lawsuit against the big recording labels. She’s accusing them of fraud, malicious prosecution, libel and slander, invasion of privacy, deceptive business practices, misuse of copyright laws and colluding to engage in widespread extortion and racketeering.

In Los Angeles, I’m Bob Moon for Marketplace.

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