While the RIAA has stopped its mass litigation campaign against file-swappers, cases in progress persist. Tanya Andersen's is one of the oddest and most intriguing, and it's set to proceed to trial against the RIAA next year on charges of "abuse of the judicial process."

When the record labels sued single mom Tanya Andersen of Oregon back in 2005, they got more than they bargained for. Not only did Andersen file counterclaims against the RIAA and its investigators, but she successfully got the case dismissed and even won $107,834 in attorneys' fees. Then, in 2007, she filed a separate suit against the record industry, charging it with a huge list of accusations:

negligence

fraud and negligent misrepresentation

violations of ORICO

violations of the federal Racketeering Influenced Corrupt Organization Act (RICO)

abuse of legal process

malicious prosecution

outrage and intentional infliction of emotional distress

violation of the Computer Fraud and Abuse Act (CFAA)

trespass to chattels

invasion of privacy

libel and slander

deceptive business practices

misuse of copyright laws

Or, to sum it up another way: the RIAA and its investigator MediaSentry were called malicious privacy-invading gangsters who indulged a taste for computer fraud as they deceived the public, misused US law for their own twisted ends, and who purposely went after (and then slandered) a psychologically fragile woman.

The case is still in progress, but in the last three years, federal Judge Anna Brown has cut down those claims one by one and dismissed several of the defendants. One of the last remaining claims in the lawsuit was "negligence" for "prosecuting baseless sham litigation" against Andersen, and Judge Brown finally ruled on it yesterday.

Oregon courts only allow "emotional distress caused by negligence" claims if the emotional distress was the result of some physical injury. Thus, if a business negligently allowed ice to form on its front steps and you fell, you could sue for emotional distress. But if you simply felt terror at contemplating those slippery steps and got back in your car and went home... no cash.

In this case, "the evidence indicates that Andersen suffered emotional distress that increased and exacerbated her physical suffering" but she couldn't prove "any kind of physical impact that caused her to suffer emotional distress as required."

Negligence charge dismissed. In the eyes of the law, the RIAA is not the libeling fraudster mob boss of Andersen's claims, and Andersen is not allowed to launch a class-action lawsuit against the record labels. But she'll still get her day in court on the one remaining charge.

"I stab people"



The case has clearly been emotional for Andersen, and the language of her initial complaint was uncompromising. The RIAA "publicly libeled" Andersen by saying that she had downloaded and shared songs "with titles such as 'die motherf---er die,', 'bullet in the head,' f--- y'all hoes,' 'n----- f---er,' and 'i stab people.'" In reality, Andersen "listens to only country music and soft rock" and has "avidly purchased music from RIAA member companies' mail-order CD clubs." Her child, a young girl, presumably had no such tastes in music, either.

What really made it worse, in Andersen's mind, was that she believed she had actually found the culprit. The RIAA was going after a KaZaA user called "gotenkito," a name Andersen says she had never heard. So she went online and used the Power of Google.

"In fact, a simple 2-minute search for 'gotenkito' on the Google search engine confirms that a young man in Everett, Washington had been using the Internet name gotenkito" (it appeared on his MySpace page). And the man in question admitted on the site to downloading music from the Internet. Boom!?

Andersen told the RIAA about this, and they duly deposed the man. He claimed innocence as well; the lawyers apparently took his word, relying instead on Verizon's repeated assurance that its IP address lookup fingering Andersen's home address was correct. In addition, Andersen at some point in the case confirmed that KaZaA Lite was installed on her computer (she said a friend had installed it; the friend, when deposed, said she knew nothing about it), though there's no evidence it was ever used, and an investigation of Andersen's computer turned up nothing incriminating.

(Update: Lybeck tells us that "gotenkito" was never actually deposed by the recording industry, merely interviewed over the phone. According to a recording industry statement of facts in the case, label lawyers "investigated Mr. [redacted]. They interviewed him. He denied having used KaZaA to download any sound recordings." But the investigation, apparently, did not go much beyond this because it was Andersen's home that "Verizon repeatedly identified as the location of the relevant IP address.")

But the episode set up Andersen to believe that she was being targeted by the RIAA even when it knew she was innocent, something vehemently denied by the labels. In fact, they point out in one filing that those who have denied sharing files often did so. "Numerous people initially denied having used peer-to-peer software to upload and download copyrighted songs, but later recanted and admitted that they had, in fact, done so. Indeed, in one of the two enforcement program cases that have gone to trial so far, the defendant [Joel Tenenbaum] had denied infringement for years, and then admitted on the witness stand that his former denials, including statements made under oath, were false."

Whatever actually happened back in 2004 on KaZaA, the effects on Andersen have been profound. There have been the years of litigation, for one thing, but the case has also had serious lifestyle effects. Andersen took disability from the Department of Justice in 2004 for "painful physical illness, emotional and psychological problems." She hoped to return to work, but "her psychological and physical symptoms seriously worsened due to Defendants' malicious and outrageous conduct." She submitted a recent (and sealed) medical report to the court outlining these symptoms, which include severe headaches.

Last chance

Andersen has one chance left to succeed in court. The judge will still allow her claim for "abuse of legal process," but it can only be applied to the RIAA's actions in their own litigation against her (a broader class-action suit looking at their entire campaign is off the table). The case will go to trial, though no date has yet been set. Given the number of charges and defendants dismissed so far, this might sound like a case destined to go nowhere, but Andersen's lawyer remains confident.

Lory Lybeck helped Andersen win the dismissal of the charges against her, and then the cash from the RIAA, and he's energized by the prospect of putting the industry on trial. Lybeck told Ars today that the $107,834 was merely compensation for legal fees (he has worked for Andersen on a contingency basis), and that the new trial will be about securing a "Goliath verdict with punitive damages" against the labels.

There was "no reasonable explanation for why they continued to prosecute her," he says. It was "some pretty abusive conduct."

In Lybeck's view, the RIAA was fully aware that "there was a known and significant error rate" in the way it discovered IP addresses and turned them into addresses, but recognizing that error rate would have undermined the national litigation campaign. So, in Lybeck's view, the RIAA put itself in a position where it simply couldn't let the case go even when it was clear that a mistake had been made.

He points out that Andersen was not a typical defendant. She immediately called the RIAA's settlement center, offering to let them search her machine. She petitioned every member of the Congress and Senate from Oregon to help her. She lived with a young girl and yet was accused of sharing some fairly profane music. She had complained to Verizon about interruptions in her Internet service in the weeks before the alleged infringement. And she went online and found someone living in the same part of the country who used the same ISP, used the word "gotenkito," and talked about downloading music.

Andersen "took great offense to all the accusations," he says. "She was seriously harmed." And Lybeck plans to secure compensation for the years of effort Andersen has expended fighting the case.

The RIAA had no comment on the case.