Legal Bytes: Who Are Those People at the RIAA?
by John Brewer, Computer Club of Oklahoma City
November 2004
The RIAA is suing end-users for file sharing. The RIAA is an industry association whose full name is the Recording Industry Association of America. The following is quoted from an RIAA press release regarding the litigation. The RIAA states that it has only sued “illegal” file sharers.
On September 20, 2004, the RIAA filed copyright infringement lawsuits against more than 700 file sharers, including individuals at 26 different Universities across the country.
As part of legal action against a total of 762 file sharers, 32 individuals at 26 different schools were sued by the major record companies for using their university networks to illegally distribute copyrighted sound recordings on unauthorized peer-to-peer services.
As with all the lawsuits filed so far this year, the RIAA is utilizing the “John Doe” litigation process, which is used to sue defendants whose names are not known. In addition to the “John Doe” lawsuits against 762 file sharers today, last week the RIAA, on behalf of the record companies, brought lawsuits against 68 named defendants. These are individuals who were identified through the litigation process and then declined or ignored an RIAA overture to settle the case before it proceeded any further.
Cary Sherman, the RIAA’s president, said the lawsuits against university network users were designed to drive home the message to students that unauthorized downloading has consequences and that legitimate alternatives are available. “We want music fans to enjoy music online, but in a fashion that compensates everyone who worked to create that music.”
The illegal file sharers sued in this round were using a variety of unauthorized peer-to-peer platforms, including eDonkey, Kazaa and LimeWire. The individuals included in today’s legal action were on the networks of the following universities: Appalachian State University, Augsburg College, Claremont McKenna College, Colgate University, College on Mount Saint Vincent, Columbia University, Georgetown University, Hampton University, Illinois Institute of Technology, Kean College, Kent State, Louisiana State University, Michigan State University, Minnesota State University, New York University, Pacific Lutheran University, Portland State University, St. John’s University, Stanford University, State University of West Georgia, SUNY College at Old Westbury, University of Connecticut, University of Louisville, University of the South, Virginia State University, and Western Illinois University.
The RIAA sends subpoenas to Internet Service Providers (ISPs) requesting information regarding file downloads by subscribers. This writer has seen the product of one of those subpoenas. The ISP provided screen shots to the RIAA detailing the exact files that were downloaded to an IP address assigned to the subscriber. It is my understanding that a child of the subscriber logged on to Kazaa over a period of months and downloaded many music files. The father-subscriber of the ISP has received a letter from the RIAA demanding settlement based on the statement that the father is a named “John Doe” defendant in a case currently filed in federal district court. This poses a real dilemma for the father. He must choose to defend the case and incur the financial burden of a defense or he must settle with the RIAA. The father has the classic no-win situation.
The lawsuits are filed where the ISP is located rather than where the defendant resides. This imposes an additional burden on the defendant as s/he must now seek a dismissal of the case or a transfer of the case to a local court.
The subpoenas that are issued to the ISPs may be subject to objection. The Electronic Frontier Foundation recently published the following on its web site.
“A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas. The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.”
The Pennsylvania case follows an earlier set of rulings that seem to limit the right of the RIAA to use subpoenas to gather information in the Verizon case.
Earlier in October, the Supreme Court denied a request by the Recording Industry Association of America (RIAA) to hear its appeal of a lower court decision that Internet service providers (ISPs) do not have to hand over the names of people suspected of copyright infringement. The case grows out of an incident in which the RIAA used a controversial subpoena provision under the 1998 Digital Millennium Copyright Act (DMCA) to demand that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used Kazaa peer-to-peer software to share copyrighted music online. Verizon refused to divulge the subscriber's identity, claiming that the provision didn't cover alleged copyright-infringing material that resides on an individual's computer, only material that resides on an ISP's server.
Are these issues complicated? Yes, they are. In fact, they are extremely complicated legal issues and expensive to litigate. Regardless of whether file downloading is legally or morally permissible, every parent should monitor the home computer for indications that children within the household have file sharing software on the computer. If the child is downloading music files and those files are identified as suspect, the subsequent ordeal may challenge the family unit and the family bank account.
John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to
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