Lawyer for woman sued by RIAA asks for sanctions, gets sanctioned himself

An attorney representing a woman sued by the Recording Industry Association of America claimed his client was innocent and asked a federal judge to levy sanctions against the association's lawyers. Instead, he's the one who got sanctioned for wasting the

Last year, an attorney representing a woman sued by the Recording Industry Association of America claimed his client is innocent and asked a federal judge to levy sanctions against the association's lawyers.

Instead, in an unexpected legal twist, U.S. District Judge Terry Means ruled on May 16 that it was entirely likely that the woman was violating copyright law via the Kazaa file-sharing program -- and ordered that her attorney be sanctioned for wasting the court's time with "frivolous" arguments.

"Frivolous motions for sanctions that harass the opposing party's attorney, chill that attorney's zealous representation of his client, and needlessly increase the cost of litigation cannot go unpunished," wrote Means, whose court is in the northern district of Texas.

The lawsuit began when Safenet's MediaSentry flagged someone using Kazaa to share copyrighted recordings at 5:42pm EST on January 6, 2005 using the Internet Protocol address 172.143.120.109. MediaSentry reports finding approximately 850 sound files in that shared directory.

One of the files was a playlist with the name "Diane.kpl". The RIAA's subpoena to AOL requesting the identity of the account holder turned up the name of Diane Heslep in Arlington, Tex.

Heslep hired attorney Thomas Kimble to represent her, and they took an aggressive litigation stance. Settlement talks broke down. Kimble claimed the lawsuit was "predatory." Kimble refused to talk to the RIAA's national lawyers and only the local lawyers. Kimble offered to let the RIAA inspect Heslep's hard drive, but only in exchange for a payment of $10,000 if it showed she was not currently engaged in copyright infringement. (The RIAA rejected the offer.)

The paperwork that Kimble filed with the court claims that his client was at work at 5:42pm on that day and the AOL account was used by unidentified secondary users. Heslep also submitted a sworn statement saying she was not using Kazaa then -- but, narrowly, did not deny using the software to infringe copyrights at any other time.

In response to Kimble's request for sanctions, Judge Means wrote: "Even if Heslep herself was not online on January 6 acquiring and distributing plaintiffs' copyrighted recordings, it's reasonable to infer that someone she knew and gave permission to use her AOL account was... This is further buttressed by the fact that to date, although she alleges there are secondary users who have access to her AOL account, she has refused to provide any information to plaintiffs regarding these secondary users-possibly assisting those secondary users in escaping liability."

Means also wrote: "Second, Heslep's claim that AOL confirmed that she was not online at 17:42:34 EST on January 6, 2005, is simply false. AOL confirmed twice for Plaintiffs that a screen name in Heslep's AOL account was online at the date and time in question."

The judge ordered Kimble to personally pay the RIAA's costs and attorney fees for the time they spent defending against his "frivolous" charges. He also noted that Kimble had been sanctioned before, in 1998, for "bad faith" efforts to oppose requests from opposing counsel for material to which they were legally entitled.

 

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