AT&T Tech Support 360Lawyer for woman sued by RIAA asks for sanctions, gets sanctioned himself
Last year, an attorney representing a woman sued by the Recording Industry Association of America claimed his client is innocent and asked a federal judge to levy sanctions against the association's lawyers.
Instead, in an unexpected legal twist, U.S. District Judge Terry Means ruled on May 16 that it was entirely likely that the woman was violating copyright law via the Kazaa file-sharing program -- and ordered that her attorney be sanctioned for wasting the court's time with "frivolous" arguments.
"Frivolous motions for sanctions that harass the opposing party's attorney, chill that attorney's zealous representation of his client, and needlessly increase the cost of litigation cannot go unpunished," wrote Means, whose court is in the northern district of Texas.
The lawsuit began when Safenet's MediaSentry flagged someone using Kazaa to share copyrighted recordings at 5:42pm EST on January 6, 2005 using the Internet Protocol address 172.143.120.109. MediaSentry reports finding approximately 850 sound files in that shared directory.
One of the files was a playlist with the name "Diane.kpl". The RIAA's subpoena to AOL requesting the identity of the account holder turned up the name of Diane Heslep in Arlington, Tex.
Heslep hired attorney Thomas Kimble to represent her, and they took an aggressive litigation stance. Settlement talks broke down. Kimble claimed the lawsuit was "predatory." Kimble refused to talk to the RIAA's national lawyers and only the local lawyers. Kimble offered to let the RIAA inspect Heslep's hard drive, but only in exchange for a payment of $10,000 if it showed she was not currently engaged in copyright infringement. (The RIAA rejected the offer.)
The paperwork that Kimble filed with the court claims that his client was at work at 5:42pm on that day and the AOL account was used by unidentified secondary users. Heslep also submitted a sworn statement saying she was not using Kazaa then -- but, narrowly, did not deny using the software to infringe copyrights at any other time.
In response to Kimble's request for sanctions, Judge Means wrote: "Even if Heslep herself was not online on January 6 acquiring and distributing plaintiffs' copyrighted recordings, it's reasonable to infer that someone she knew and gave permission to use her AOL account was... This is further buttressed by the fact that to date, although she alleges there are secondary users who have access to her AOL account, she has refused to provide any information to plaintiffs regarding these secondary users-possibly assisting those secondary users in escaping liability."
Means also wrote: "Second, Heslep's claim that AOL confirmed that she was not online at 17:42:34 EST on January 6, 2005, is simply false. AOL confirmed twice for Plaintiffs that a screen name in Heslep's AOL account was online at the date and time in question."
The judge ordered Kimble to personally pay the RIAA's costs and attorney fees for the time they spent defending against his "frivolous" charges. He also noted that Kimble had been sanctioned before, in 1998, for "bad faith" efforts to oppose requests from opposing counsel for material to which they were legally entitled.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan.
comment:
"... although she alleges there are secondary users who have
access to her AOL account, she has refused to provide any
information to plaintiffs regarding these secondary users-
possibly assisting those secondary users in escaping liability."
Assume for a moment that Heslep's allegations are correct. Now
she has to somehow get access to AOL's servers in order to
determine WHO is hacking her account? What happens when she
does that, considering that unless she works at AOL she doesn't
have permission to go through AOL's servers?
If you work for or support the RIAA or MPAA, please wear a sign
on your head indicating this so I can run you over with my truck
when I see you on the street.
millions do. It's stealing, no matter how you rationalize it. It'd be
great if one payday 'truck boy' got a letter instead of a check,
explaining why he needs to come up with a new paradigm for his
compensation for working.
Really, you need to have more than an IP address to know who is sharing a file. The courts should require that a physical address to verify that the person with the IP address is actually the one using it.
against the other side for pursuing their case, and then smugly sits
back and refuses to provide any evidence to support their
allegations or to prove the case for sanctions, it is frivolous. The
rules governing attorney conduct do not permit such tactics. Some
attorneys use this approach simply as a way to tie up opposing
counsel's time by forcing them to defend their licenses (and if the
opposing party is small, to use up their resources). It's a rotten
tactic, and I am glad to see the judge see through it.
from her ISP.
Accounts can be hacked if people use stupid passwords, thats
the most frequent problem. They reuse the same password, or
PIN so they don't have to remember as many. I learned that
early on, and as such have too many passwords complex (you all
know the rules, no words, not your ph#, address, or related to
you or your "public" history) so they can't be easially hacked.
RIAA seems to have "bought" a judge here. If it was that the
account was reg'd to her they put the blame on her... Just like
cars and red light camera violaters go by the plates. I don't
understand the logic. I still say THEY have to prove the person
they are chasing they must PROVE is the one violating.
You can spoof IP addresses easially by a few means... I won't go
into detail for obvious reasons. But if it DID originate from her
address there would be history on her computer to prove or
disprove it. The secondary problem, depending on security, is
"piggybacking". It all depends on how tight you have set your
security and user accounts on the computer.
I still insist it's up to the accusing party to prove their case. If
I'm accused of a crime, they must PROVE *beyond doubt* I did it;
not guilty until proven innocent.