Man bites dog

Here’s an interesting man-bites-dog story:

A New Jersey woman, one of the hundreds of people accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act.

Via Glenn Reynolds, who thinks “she might just have a case.” (Slashdot has a similar take.)

I don’t. Or, I should say (having not seen the Complaint): “I think it highly unlikely.”

The Racketeer Influenced and Corrupt Organizations Act (RICO*) was originally passed to combat organized crime. Clever lawyers, however, have tried to apply its broad language to pretty much everything under the sun — from simple fraud cases to abortion protestors.

At the heart of every RICO claim are two elements: A “pattern” of “predicate offense” (fraud, extortion, bribery, etc.) and an “enterprise” through which those offenses are committed.** Both elements need to be met to state a claim. Moreover, under the law, both elements have to be alleged with specificity: a general or blanket allegation that X is an enterprise, for example, won’t do.***

Without going into it too far, I doubt that either element can be sufficiently alleged. The alleged “predicate offenses” by the RIAA appear to be alleged “extortions.” Apparently, the theory is that each copyright infringement lawsuit filed by the RIAA is an unlawful attempt to extort money from the target. But the filing of a copyright infringement lawsuit is generally a protected activity, and you have to show bad faith to overcome that presumption and even begin to make an extortion claim. Bad faith ain’t merely a “maliciousness” (though that’s probably needed); some knowledge by the RIAA that the lawsuit itself was frivolous at the time that it was filed is likely needed. I can’t see a plaintiff making that showing. The RIAA’s lawsuits may be heavy-handed, but they ain’t frivolous — there are real copyright violations going on.

The other problem is with the RICO enterprise. An enterprise can’t be a bunch of people who get together to commit a bunch of predicate acts; in some circumstances (a RICO claim under Section 1962(c), if you must know), it also can’t be one of the named defendants. Remember — the original purpose of RICO was to target the mafia. Think of the “enterprise” as, say, the 70s Teamsters: a legitimate organization that’s been infiltrated by ne’erdowells. With this in mind, I just don’t see an “enterprise” that survives Court scruntiny.

Of course, I could be wrong ‘bout all this — as I said, I haven’t seen the complaint. But the smart money’s on the RIAA.****

*RICO starts at 18 U.S.C. 1961 with a bunch of definitions. I linked to 18 U.S.C. 1962 because that’s where the “action” is, so to speak.

**For example, in order to state a viable cause of action under § 1962(c), a plaintiff must allege “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). Section (a) involves unlawful use of an enterprise’s proceeds; (b) involves acquisition or maintenance of an interest in an enterprise; (d) is a charge that you conspired with others to violate Sections (a), (b), or (c).

***The requirement of particularity is partially a result of Federal Rule of Civil Procedure 9(b) (which requires fraud and other specific claims be alleged with extra details — who/what/when/where/why/how), and partially a result of RICO caselaw.

****The plaintiff was smart to file in New Jersey, however, and not New York. The Federal Third Circuit (which covers New Jersey) has been friendlier to RICO claims than most other circuits — and much friendlier than the Second Circuit, which has yet to find a defense it doesn’t like.