Over the past three years, thousands of people have settled lawsuits brought by the Recording Industry Association of America for illegally uploading copyrighted songs. But Patricia Santangelo doesn't plan on being one of them.
The 42-year-old divorced mother of five from Wappingers Falls, New York, didn't set out to be a trailblazer, but when she was served with a lawsuit late last year claiming songs had been illegally shared using her computer, there was no way she was going to pay up to make it go away.
"I was shocked because I didn't understand how someone could be sued for something they didn't do. I didn't know what was going on," said Santangelo. "When [the RIAA's lawyers] called me, there was no music on my computer and they had an old IP address."
Once the judge in the case suggested Santangelo hire a lawyer to help her case, she tapped New York's Morlan Ty Rogers, who quickly suspected that the case might be the first one in which a defendant could fight the RIAA, and maybe even win.
"Many of the people who have been sued in these cases did do the downloading, and they haven't been willing to fight the complaints because if they lose, they could end up owing hundreds of thousands of dollars," Rogers said. "In my client's case, she did not know about Kazaa being on her computer, had no idea any of this was going on, and her understanding is that it was not her kids who were doing it." Rogers said it's possible the files were downloaded without Santangelo's knowledge by someone using a wireless connection.
The RIAA has filed federal lawsuits against more than 13,000 Internet users since September 2003, with nearly 3,000 of those accused settling for an average of $4,000-$5,000 (see "RIAA Sues 784 For File-Sharing, Gives Props To Supreme Court Ruling"). To date, none of the other cases have advanced beyond the early trial stages. In Santangelo's case, as in the others, the RIAA's computerized 'bot detected copyrighted songs available for uploading on her computer, but in what Rogers claims is a novel defense, it's the very fact that the RIAA found the songs that could end up exonerating his client.
"As an exhibit in the complaint, they typed up a list of six songs that RIAA investigators downloaded from a shared account that was supposedly on my client's computer," Rogers said. "The complaint said those files were there for sharing, but they have no evidence that anyone did share them. For them to prove copyright infringement, they have to show that there was unauthorized distribution of a copyrighted file to the public. If they knew some 16-year-old who downloaded those songs from my client's drive, that would be copyright infringement, but if their own investigators did it, it's not distribution to the public. A copyright owner cannot infringe on their own copyright."
Rogers, who recently filed a motion to dismiss the complaint against Santangelo, also said he thinks the "boilerplate" language of the suits is too vague to stand up to the scrutiny of a copyright case. "Other than changing the names, this is the same complaint used in thousands of other lawsuits, and they don't have any specific allegations about anyone uploading music from a file on someone else's computer," he said. "They're just using their software to find the person whose name is on the IP account, but that doesn't mean that person was at a computer downloading stuff. It could be anyone outside the home with a wireless connection doing it without the person's knowledge."
Santangelo said the lawyers representing the recording industry offered her a chance to settle the case for $7,500, and later reduced the sum to $3,500, but she refused. "I just felt like what they were doing was wrong and how they did it wasn't proper," said Santangelo, who added that she's never used Kazaa and that the screen names on the complaint did not belong to any of her kids.
RIAA spokesperson Jonathan Lamy declined to comment on the specifics of the Santangelo case, but said, "We believe that we have ironclad evidence that the illegal downloading occurred in this person's house. The ISP identified her as an account holder and all of the evidence supports our belief to file a good-faith claim."
In a unanimous decision in June in the case of Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Supreme Court ruled that file-trading networks can and should be held liable when they create programs that are used primarily to illegally swap music, movies and other copyright-protected works. Lamy said that just as the RIAA will continue to hold accountable businesses that engage in theft, it will pursue individuals who engage in the uploading of copyrighted works.
Lamy noted that several other users have taken the RIAA to court over the suits, and to date none have had judgements in their favor.
U.S. District Judge Colleen McMahon is expected to issue a judgement in the Santangelo case soon. She can either dismiss the charges, or find in favor of the RIAA, in which case Santangelo could be on the hook for much more than $3,500, plus the RIAA's legal fees.
For complete digital music coverage, check out the Digital Music Reports.