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Staff reporter The recording Industry Association of America (RIAA), which on Sept. 8 began a highly publicized legal assault to protect copyrighted music from Internet pirates, now finds itself on the other end of a lawsuit. Filed in state court in Marin County, Calif., the suit accuses the RIAA of offering a bogus amnesty program to individuals who turn themselves in and agree never to illegally share music online again. The suit charges the RIAA with “engaging in unlawful, misleading and fraudulent business practices” because the amnesty program it is offering does not provide real amnesty from future lawsuits and its clean-slate program does not provide a true clean slate. The association had simultaneously filed 261 federal suits in New York, Chicago, Dallas, Denver, Phoenix and Los Angeles. It announced the start of what it called its “clean slate” amnesty program, offering shelter to offenders who voluntarily admit their transgressions and sign an affidavit swearing that they will purge their computers of infringing files and never again upload files to the Internet. The wrinkle in the RIAA program is that while the association has made itself the public face of the file-sharing crackdown, it is not a named plaintiff in any of the 261 cases, nor does it actually hold the copyrights it is fighting to enforce. Named as plaintiffs in the suits are the nation’s largest music recording companies: Universal, Warner Bros., Virgin Records, Sony Music, Arista Records, Capitol, Interscope and Motown. While all of the plaintiffs are members of the RIAA, none of them would be a signatory to amnesty agreements being offered by the association and all of them-and their artists-would retain their individual rights to sue confessed copyright infringers. The suit, filed by San Rafael, Calif.-based attorney Ira P. Rothken, seeks an injunction ordering the RIAA to halt its clean-slate program, to destroy any affidavits it may have obtained from confessors and to tell the general public that the program’s promises and implications were “false and misleading.” Parke v. Recording Industry Assoc. of America, No. Civ. 034229. Rothken said that neither he nor his client filed the suit in defense of piracy, nor is his client a defendant in any of the RIAA lawsuits. He said the named plaintiff, Eric Parke, was selected because he does not upload music from the Internet and, thus, has no personal stake in the RIAA cases. Under the state unfair businesses practices law on which Rothken’s suit is based, any California resident-not necessarily one who is aggrieved-can sue. Rothken said the suit was filed to compel the RIAA either to describe the amnesty program more accurately or to give real amnesty. Defending the program, Cary Sherman, RIAA’s president and general counsel, said that because his organization is spearheading the offensive, “we’re the only ones suing. So, as a practical matter, people are getting real protection.” The association has not yet formally responded to Rothken’s complaint. This is not Rothken’s first foray into Internet law. Closely allied with the San Francisco-based Electronic Frontier Foundation, he was co-lead counsel in the national class action Judnick v. DoubleClick, one of the first Internet privacy suits filed against the online advertising giant. The case settled in 2002 when DoubleClick Inc. agreed to restrict its use of Web surfer personal data and agreed to pay $1.8 million in attorney fees. Fighting piracy The RIAA, which is based in Washington, relied on outside counsel to help with the filing of the lawsuits. The firms involved include New York’s Cowan, Liebowitz & Latman; Chicago’s Jenner & Block; Dallas’ Gardere Wynne Sewell; Denver’s Holme Roberts & Owen; Phoenix’s Fennemore Craig and Los Angeles’ Mitchell Silberberg & Knupp. One attorney not involved in the suits is Chicago patent lawyer Glen Belvis, a former professional musician and now a member of Brinks Hofer Gilson & Lione. He called the RIAA strategy “a gamble,” explaining that if the association is using the litigation to buy time while it develops its own downloading protocols, it could benefit. Otherwise, he said, it’s not in the companies’ best interest to sue their own customers. Sherman said that the cases were developed using information gleaned from subpoenas served on Internet service providers, which allowed the RIAA to learn the identities of Web users who were making substantial numbers of music files available for sharing. All of the defendants used peer-to-peer interfaces popularized by the now-defunct Napster, and still offered by services known as Kazaa, Grokster and Blubster. Sherman declined to say how many files had to be uploaded before a peer-to-peer user became a defendant, but said that all of the users sued had uploaded more than 1,000 songs. Jason M. Schultz, an Electronic Frontier Foundation staff attorney derided the amnesty program as a “shamnesty,” and accused the association of terrorizing its clientele instead of working to change its music distribution methods. Harris’ e-mail address is [email protected].

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