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Group Contends Record Labels Have Wrong Guy

The Electronic Frontier Foundation asks the music industry to drop its case against a Playa del Rey man who says he doesn't download songs.

October 14, 2003|Joseph Menn | Times Staff Writer

An online civil rights group has adopted the cause of a Playa del Rey man who believes he has been mistakenly accused of improper file trading by the record industry, setting up a possible showdown over the music business' methods for identifying suspected pirates.

The San Francisco-based Electronic Frontier Foundation on Monday asked lawyers for three record labels to drop their suit against 35-year-old Web site designer Ross Plank, asserting that he is the second target of 261 high-profile suits who is the victim of mistaken identity.

The record companies referred questions to the Record Industry Assn. of America, where a spokeswoman said the trade group was looking into the dispute.

"We're confident in our evidence collection process," RIAA spokeswoman Amanda Collins said. "But to the extent someone claims that we've erred, we will investigate the matter."

More than 50 people sued by RIAA have settled.

Foundation staff attorney Wendy Seltzer said that if the labels do not dismiss the case from U.S. District Court in Los Angeles, her nonprofit group could seek damages to compensate the harried defendant and to learn more about how the labels pick their targets.

"This is a process that needs to be tightened up a lot," Seltzer said.

Plank said his first warning came when his Internet access provider, Comcast Corp., notified him that it had been subpoenaed about his alleged song sharing. Because Plank doesn't use any of the file-swapping networks, he figured it was a mass mailing and threw the notice away.

Weeks later, a reporter called and told him he'd been sued. Plank thought then that someone else could have been using his home-office computer to post songs.

Both Plank and his fiancee use the machine in their business, and Plank has a wireless network that allows his roommate and even neighbors in his condominium complex to get online.

"I'm not someone who does any downloading," Plank said. "I'm planning a wedding; I'm trying to run a business. There's stress enough in life."

At a relative's suggestion, Plank contacted the foundation. The group checked the subpoena that had been issued in the case, which identified a suspect by his Kazaa screen name and Internet protocol address.

Plank said he found out his computer had been using a different Internet address at least since May, before the date cited in the subpoena.

Plank and the foundation said it's unclear whether the record companies had an incorrect IP address or whether Comcast turned over the wrong name.

Comcast spokeswoman Sarah Eder said the Philadelphia cable operator had been "absolutely scrupulous" in making sure it identifies the right customers. "We're going to be looking into it tonight," Eder said.

Comcast also was the provider for 66-year-old Massachusetts sculptor Sarah Ward, whose case was the first known one to be dropped by the record labels since they began suing computer users in September.

Taken together, the cases could open an avenue for defendants to argue that the evidence against them is unreliable, defense attorneys said.

Also, because so many Internet accounts are shared by families or friends, an argument can be made that the person who is paying for access should be served with a subpoena seeking more information, not sued, said Beverly Hills defense attorney Joseph Singleton.

Otherwise, the labels "are making allegations on an insufficient basis, which you're not supposed to do," Singleton said.

Last month, the RIAA said that in future lawsuits it would first notify the targets by letter -- potentially minimizing mistakes and increasing the chances of early settlements.

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