Defendant Andersen's attorney on RIAA suit: "They can't run now"

Friday may mark a significant milestone in the RIAA's legal campaign against file-sharing, as it is the deadline for exonerated RIAA defendant Tanya Andersen to refile her malicious prosecution lawsuit against the record labels. Soon afterwards, discovery will begin, and all sorts of unsavory details about the RIAA's legal campaign against suspected file-sharers are likely to emerge.

Andersen is a single mother living in Oregon who was sued by the record labels in February 2005. She eventually filed a counterclaim against the RIAA, and when the labels voluntarily dismissed their case against her last June, she filed a malicious-prosecution lawsuit. In it, Andersen accuses the RIAA of fraud, racketeering, invasion of privacy, libel, slander, deceptive business practices, and violations of the Oregon state RICO Act.

Last month, a federal judge dismissed Andersen's original complaint, saying that she had "not adequately stated claims for relief," but gave her a one-month window to refile. Her attorney, Lory Lybeck, told Ars that he plans to file a new 80-page complaint tomorrow. "The focus of the amended complaint is essentially the sham litigation and abuse of the federal judiciary to operate this criminal enterprise that has harmed Tanya Andersen and thousands of other people," Lybeck said.

With a new complaint, the case is certain to move forward into the discovery phase, as the judge has told both sides that she would not entertain any further motions to dismiss this case. It's an uncomfortable place for the RIAA to be in.

"Usually, the parties are entitled to liberal pretrial discovery of anything related to the subject matter of the case," copyright attorney Ray Beckerman told Ars. "So the scope of the amended complaint will have a big impact on what is and what is not discoverable."

Lybeck tells Ars that he'll be digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.

One of the allegations in the amended complaint will involve MediaSentry's status as a private investigator. "MediaSentry claims it is able to gain access to people's hard drives without their permission and collect information," notes Lybeck. "It's illegal because they're not licensed to do that work."

The amended complaint and subsequent discovery will also focus on what Lybeck calls the "flawed nature" of the RIAA's investigations. "We know [the RIAA] cannot identify individuals," he says in response to a question on false positives. "We want to know how many dolphins the RIAA is catching," referring to a former RIAA spokesperson's 2003 comment about accidentally catching a few dolphins when fishing with a net.

The RIAA is likely to fight the discovery process tooth and nail, however, as the information that is unearthed could prove to be extremely embarrassing, if not problematic. "They've operated in this zone of secrecy for five years now, and we hope to put a stop to that," Lybeck stated emphatically, "because it will become obvious that their conduct is illegal an their whole scheme is flawed at its basic core."

So far, the RIAA's attorneys have been uncooperative on discovery issues, according to Lybeck. He says that he has reached out to RIAA lead national counsel Richard Gabriel, who was argued the labels' case in the Jammie Thomas trial, in order to move the process forward. "He's refused," Lybeck said. "I assume we're going to run into the same stall and delay tactics."

Gabriel took issue with Lybeck's characterization, accusing him of making "false statements" about his conduct. "As I discussed with Mr. Lybeck, the Court dismissed all 13 of his client's claims," Gabriel told Ars. "As a result, there are no claims pending at the moment, and his request to schedule discovery is premature. We are eager to resolve all outstanding issues in this case and look forward to doing so in a rational way that follows the process outlined by the Court."

The judge has barred further motions for dismissal, so unless the RIAA decides to settle—a move Lybeck believes is in the group's best interest—the case will proceed through discovery and to trial. Unlike the thousands of lawsuits filed so far, the RIAA does not have the luxury of walking away from this case if there's a real chance of embarrassing information being released. "Once discovery happens in the cases the RIAA brings, they run," Lybeck says. "This is our case now, and they can't run."

Lessig publicly humiliates Andrew Keen

Larry Lessig found himself on a panel with Andrew Keen, whose "Cult of the Amateur" excoriates the Internet for breeding sloppiness and errors, so Larry went through a list of the errors Keen made in his book. First off, Keen's description of Lessig as someone who "laud[s] the appropriation of intellectual property." Lessig pointed out the many times that he'd decried this, and asked Keen to cite a single instance in which he'd done what Keen alleged. Keen sat silent.

Then, when Keen got home, he blogged (!) about the incident saying that he'd crowd-sourced the question to his blog-readers who'd affirmed that, indeed, Lessig had done what he'd said. Though, of course, no references were forthcoming.

I asked Keen if he had ever read anything I had written. He said he had. I asked him to name one instance where I had ever "laud[ed] the appropriation of intellectual property." He sat silently. I pressed. He had no answer. He could name no instance of my "laud[ing] the appropriation of intellectual property" because that's not my schtick. Indeed, as I repeatedly insisted in Free Culture (see pages 10, 18, 62, 63, 64, 65, 66, 139, 255), what others call "piracy" I was emphatically not writing to defend. Indeed, I criticized it as "wrong."

Now whether mine is a sensible view or not, or a view consistent with the Free Culture Movement or not, is an argument had on this page many times. But the Keen-relevant point is that my claim was a claim about a fact. He alleges I "laud the appropriation of intellectual property." I claim I do not. That's a true/false claim. And so in the tradition of the professional truth-seeker, so threatened, Keen believes, by the wisdom-of-the-crowds Internet, one would think that the disagreement would be resolved by someone actually reading something, or at least providing some citation. No doubt it was unfair to call Keen out on stage. He didn't come with his notes. Why would I expect him to be able to identify anything in my work at all? But after the conference, perhaps. Maybe then Keen could defend the assertion that I flatly denied.

And indeed, he now has -- but the interesting (self-parody point) is how.

In a blog post, Keen again charges me with lauding the appropriation of intellectual property. But what's the source for his renewed charge? Did Keen go back to the books? Or back to his notes? Does he offer a quote, or a passage to exemplify this defining feature of my work?

No. The truth of this matter for Keen is resolved by asking a bunch of people at the conference whether in fact I "laud the appropriation of intellectual property." They said I did. And that resolves it for Keen.

Reposted from Boing Boing.

I'm not a fan of Andrew Keen, and Lawrence Lessig is a personal hero of mine. To see this exchange happen brings be great delight. Andrew Keen is a charlatan. Every time he repeats his assertions about the nature of publication on the Internet he assumes that it, like paper publishing, is a one way medium, because that is the one that he is safest in, in a situation in which no-one can challenge him or his arguments. As soon as he finds himself in a situation where someone can question him, he clams up, like in this case. Unfortunately, some people, particularily in the old fashioned one-way press, still regards him as relevant because he confirms the things that they believe. The Independent has given him a platform in which he sees every incident like Wikipedia's squabbles as proof that Teh Internets Am Bad. And funnily enough, he doesn't allow discussion of his articles on the online version. Funny that.

Microsoft Lowered Vista Requirements To Help Intel Sell Incompatible Chipsets

So now that the "Vista Capable" lawsuit is a full-blown class action, the judge has unsealed all 158 pages of emails between Microsoft execs trying to sort out what went wrong with the sticker program. While bits and pieces have been blacked out, what remains is still fairly incredible -- although Intel's 915 chipset was initially rejected as compatible with Vista, MS execs flatly admit that "In the end, we lowered the requirements to help Intel make their quarterly earnings so they could continue to sell motherboards with the 915 graphics embedded" and "We are caving to Intel. We worked the last 18 months to drive the UI experience and we are giving this up." On top of that, it seems that the company was getting direct feedback from retailers that the stickers were confusing, with Wal-Mart appealing directly to HP to pull Vista Capable stickers from low end machines, and an MS exec saying that "I was in Best Buy listening to people and can tell you this did not come clear to customers. We set ourselves up." That's pretty damning, if you ask me -- and the complete emails, linked below, are full of similar bombshells. Looks like this case may have some serious legs after all.

Read - Seattle Post-Intelligencer coverage of the case
Read - PDF of all the emails

Justin Frankel leaves Nullsoft over spat with AOL

Justin Frankel, the creator of Winamp, has announced to leave Nullsoft in his .plan yesterday.

This seems to be the result of a possible dispute with his employer AOL over the P2P-software "WASTE", which was released by Justin a few days ago on the Nullsoft website and then taken down one day later. All that is left on the former download page is a notice that the software was posted without authorization. WASTE allowed encrypted instant messaging, group chats and file-sharing and was published with complete source code. Justin explains in his .plan that his freedom of expression -- which he claims to do best through coding -- is being constrained by his employer and that it is time to do something different.

Good. Maybe he an turn out some good software without being constrained. Meanwhile - I've got a copy of the Waste sourcecode MUahahaha.

Blog Maintenace, the early days

Got the archives working correctly. Got my Digital Blasphemy account working - if any of you want to use it the login is tuzy2k with my standard(TM) password. You all should know it - if you don't email me. Also - Jacob - it turns out that Waste program by Nullsoft - well theres a big stink about it over on Slashdot at this article. No bother - someone mirrored the Waste website and the source code so i downloaded it from there. I'll let you know if it works well.