Posted on 12/25/2005 3:39:47 PM PST by Momaw Nadon
WHITE PLAINS, New York - It was Easter Sunday, and Patricia Santangelo was in church with her kids when she says the music recording industry peeked into her computer and decided to take her to court.
Santangelo says she has never downloaded a single song on her computer, but the industry didn't see it that way. The woman from Wappingers Falls, about 80 miles north of New York City, is among the more than 16,000 people who have been sued for allegedly pirating music through file-sharing computer networks.
"I assumed that when I explained to them who I was and that I wasn't a computer downloader, it would just go away," she said in an interview. "I didn't really understand what it all meant. But they just kept insisting on a financial settlement."
The industry is demanding thousands of dollars to settle the case, but Santangelo, unlike the 3,700 defendants who have already settled, says she will stand on principle and fight the lawsuit.
"It's a moral issue," she said. "I can't sign something that says I agree to stop doing something I never did."
If the downloading was done on her computer, Santangelo thinks it may have been the work of a young friend of her children. Santangelo, 43, has been described by a federal judge as "an Internet-illiterate parent, who does not know Kazaa from kazoo, and who can barely retrieve her email." Kazaa is the peer-to-peer software program used to share files.
The drain on her resources to fight the case — she's divorced, has five children aged 7 to 19 and works as a property manager for a real estate company — forced her this month to drop her lawyer and begin representing herself.
"There was just no way I could continue on with a lawyer," she said. "I'm out $24,000 and we haven't even gone to trial."
So on Thursday she was all alone at the defense table before federal Magistrate Judge Mark Fox in White Plains, looking a little nervous and replying simply, "Yes, sir" and "No, sir" to his questions about scheduling and exchange of evidence.
She did not look like someone who would have downloaded songs like Incubus' "Nowhere Fast," Godsmack's "Whatever" and Third Eye Blind's "Semi-Charmed Life," all of which were allegedly found on her computer.
Her former lawyer, Ray Beckerman, says Santangelo doesn't really need him.
"I'm sure she's going to win," he said. "I don't see how they could win. They have no case. They have no evidence she ever did anything. They don't know how the files appeared on her computer or who put them there."
Jenni Engebretsen, spokeswoman for the Recording Industry Association of America, the coalition of music companies that is pressing the lawsuits, would not comment specifically on Santangelo's case.
"Our goal with all these anti-piracy efforts is to protect the ability of the recording industry to invest in new bands and new music and give legal online services a chance to flourish," she said. "The illegal downloading of music is just as wrong as shoplifting from a local record store."
The David-and-Goliath nature of the case has attracted considerable attention in the Internet community. To those who defend the right to such "peer-to-peer" networks and criticize the RIAA's tactics, Santangelo is a hero.
Jon Newton, founder of an Internet site critical of the record companies, said by e-mail that with all the settlements, "The impression created is all these people have been successfully prosecuted for some as-yet undefined 'crime'. And yet not one of them has so far appeared in a court or before a judge. ... She's doing it alone. She's a courageous woman to be taking on the multibillion-dollar music industry."
Santangelo said her biggest issue is with Kazaa for allowing children to download music without parental permission. "I should have gotten at least an e-mail or something notifying me," she said. Telephone and e-mail messages seeking comment from the Australia-based owner of Kazaa, Sharman Networks Ltd., were not returned.
Because some cases are settled just before a trial and because it would be months before Santangelo's got that far, it's impossible to predict whether she might be the first to go to trial over music downloading.
But she vows that she's in the fight to stay.
"People say to me, `You're crazy. Why don't you just settle?' I could probably get out of the whole thing if I paid maybe $3,500 and signed their little document. But I won't do that."
Her travail started when the record companies used an investigator to go online and search for copyrighted recordings being made available by individuals. The investigator allegedly found hundreds on her computer on April 11, 2004. Months later, there was a phone call from the industry's "settlement center," demanding about $7,500 "to keep me from being named in a lawsuit," Santangelo said.
Santangelo and Beckerman were confident they would win a motion to dismiss the case, but Judge Colleen McMahon ruled that the record companies had enough of a case to go forward. She said the issue was whether "an Internet-illiterate parent" could be held liable for her children's downloads.
Santangelo says she's learned a lot about computers in the past year.
"I read some of these blogs and they say, `Why didn't this woman have a firewall?' she said. "Well, I have a firewall now. I have a ton of security now."
The arguement is that the songs (even if legally owned) are available for "uploading" to other computers and that constitutes piracy and a loss of potential income. I can copy a song for my own use, but if I sell that copy or even give that copy away physically or via uploading I am violating copy-right. If music files are on my computer legitmately, but then I make my music files freely available via peer to peer, the RIAA claims that I am robbing them of potential revenue from folks who would otherwise buy the music. I don't think the mom has a leg to stand on unfortunatley.
How did they get onto her computer? Installing software on someones computer or HACKING it, without their knowlege or concent is a FEDERAL CRIME.....
So, what I want to know Mr. RIAA folks.. is how the hell do you know what is on this computer in the first place? Seems to me any "evidence" you have is fruit of the poison tree.
They wouldn't have to. They could use the peer-to-peer download software to determine the IP address of the computer, then backtrack the address to the user's internet service provider, who they would subpoena for the identity of the user with the lease on that IP address at the time in question.
I didn't accuse you of anything. I said do whatever you think is right. I don't know what you do. But yeah... IF and that's IF you are participating in illegal file sharing... then yeah... I think you're a thief. Surely my opinion of the activity means nothing to you??? So don't let it stress you.
Yes, Virginia, botnets exists and run unbeknownst to the owners of the machines. Is that the case here? Who knows. The mother sure doesn't and neither does the prosecution. Is it likely that the kids downloaded the software? Sure. It's also likely the machine was unknowingly compromised.
You can insist all you want about how the mother should watch everything her children do on the Internet (yea..right... don't let them go to the library), but in the end, the mother herself could have launched the virus without knowing it. Her only response when accused would be that it must have been a friend, since she is unaware of any other possibility.
And by posting to the root, you are posting in general, thereby welcoming comments to your 'opinions.' Next time, target your post if you are intending on a more personnal communication, yet still in public. Of course, if you expect no comments on your 'opinions' then may I suggest private replies.
If it was found that the kids did actually download the music, then they should pay for the music they had. Period. They should not be charged absurd numbers ($7500? please). They claimed to find hundreds of mp3s on her computer. Assume 1,000 songs and an average of 15 songs per $15 album, the appropriate fine should be 66 albums * $15, or $990.
The fact is, they did not push the music to anyone. The RIAA would claim that thousands of people may have downloaded the music, therefore the woman owes thousands. Again, they would have to prove that. Of course, the main problem is that the owners machine did not put the music on anyone else's machine. In fact, anyone that did receive the music from her machine was actually pulling it from her (that's how the protocol would work.. request oriented). So, she would be blameless if 10,000 people took the music from her. Just as blameless as the people that she got it from are for her 'crime'.
As for free mp3's, no... but I do think they should be less expensive then they currently are. This would be the motivation behind the p2p file networks. If CDs cost $2-5, people wouldn't even bother with p2p networks.
And no, I don't download mp3s. I stopped listening to the ramblings of minstrels in the mid 90s, both 'musicians' and hollywoord 'actors.'
Yes, if the machine was set up to share files, this is true.
Always glad to spread the good news. While Grokster was nasty, we just don't know how much of an impact it really will have. Even though it was quite bad, it may not have the impact of overturning Betamax even though it should. So far, there is good news on this front in that its application seems fairly limited so far.
Personally... I think a CD with 13 or so songs on it for 10 bucks isn't a bad price.
I do think that a person illegally downloading mp3's have to pay some sort of punitive damages. Maybe 7k is to much. Maybe not. But it can't be just you got caught so you have to pay for what you stole. That's my opinion.
>
If they did download it from her computer, then their case that she made copyrighted files available for others to download on Kazaa or whatever network is valid, sorry.
The variables that may well contribute towards her potential exoneration are not necessarily based on the letter of the law. But if the letter of the law is all that matters here, it doesn't matter if a guest or children's playmate did this. If the files were downloaded from her computer, their claim holds water.
>
I don't know what law is being referred to here. There is a new law about this stuff, but I don't know its specifics.
They can allege she had files on her computer and they were available to others via Kazaa, but that's not a violation of copyright. Only listening to the files and not paying for them would be a violation of copyright. If the new law says making them available is "against the law", then it's a criminal prosecution? Not civil? Does the new law entitle the "victim" of a criminal act to recover damages? Why would that be so. If it's a criminal violation, why would the state not prosecute. It would not be a civil matter. Meaning, if you rob a bank, the state prosecutes. The bank doesn't sue you to get the money back.
The "law" is about copyrights and no copyright violation has occurred until she listens to the music without paying. If there has been some explicit expansion of that law to state that mere possession of copyrighted material is an act that damages the "victim", then . . . would we not all need to have kept receipts for every book any of us has ever purchased -- to prove our innocence of having acquired them without paying? And does not a public library do this very thing? Even with music?
I have a problem with all this. Until they show that she listened to the music without paying, with dates and times in the claim and a witness, I don't see a violation of copyright.
The problem here is that they apparently know. You don't get sued for downloading, but for offering to upload. Kazaa or some similar program was broadcasting her willingness to share music. That's my reading of the case.
I've made a fair amount of money removing Kazaa and other spyware from small company computers. Like IM, it can work through firewalls unless specifically blocked.
Why? She could have downloaded a nice pinstriped Pierre Cardin.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.