Lawyers representing a California woman who was targeted by a Recording Industry Association of America subpoena have filed a motion in U.S. federal court challenging the subpoena as an unconstitutional invasion of privacy.
The woman, whose motion was filed under the name Jane Doe, is an Internet subscriber of Verizon, which is one of two major Internet service providers (ISPs) that have filed suit in resistance of the RIAA subpoenas. Verizon is currently appealing a court ruling that upheld the legality of the RIAA subpoenas.
The recording industry group said its use of more than 1,000 subpoenas sent to ISPs was aimed at file-sharing network users who were “egregious” violators of copyright law. However, the Jane Doe motion — the first challenge from an individual ISP customer — reportedly indicates that the woman used Kazaa file-sharing software mostly to listen to music she owned and that she tried to prevent sharing files from her hard drive.
The RIAA, which detailed its strategy and use of software to find copyright infringers in a letter this week, said its 1,075 subpoenas were intended to identify users involved in “substantial amounts” of illegal activity.
The recording industry group would not define the number of songs or amount of file-sharing activity that it considers substantial, but lawyers for the California woman claim her use of Kazaa was limited mostly to playback of songs from her own CD collection.
Some file-sharing applications and networks promote sharing of files by default, but the woman’s lawyers argued that while she participated in the Kazaa network, she attempted to block access to files on her computer.
The motion marks a growing resistance among Internet users and ISPs to the RIAA’s effort to track down users of peer-to-peer (P2P) file-sharing networks by issuing subpoenas to providers.
While Verizon is appealing its court loss that upheld the RIAA’s subpoenas, telecom giant SBC is also suing the RIAA through its Pacific Bell Internet Services division, claiming the subpoenas endanger the privacy of users.
A group of ISPs known as NetCoalition also has questioned the subpoena strategy, voicing concerns over a lack of independent review of the subpoenas, the cost of dealing with them, and subscriber privacy.
Use Was Minimal
Glenn Peterson, an attorney with McDonough, Holland and Allen — the firm that filed the motion on Jane Doe’s behalf — told TechNewsWorld that the woman was a Kazaa user, but that she used the application to play music that was lawfully on her computer.
“The RIAA statement that they’re only going after egregious infringers doesn’t really square with the subpoena at issue here,” Peterson said.
“The fact that someone had content in a shared music folder is not enough to label them an egregious user and is not enough to injure their privacy without due process,” he added.
Same Old Argument
In response to the motion by the California woman, the RIAA referred to its Verizon case victory and the judge’s ruling that if a subscriber opens a computer to permit others to download materials via a P2P network, that action makes that subscriber guilty of piracy.
“Nobody has a right to steal music,” RIAA senior vice president of business and legal affairs Matt Oppenheim said in a statement. “This individual’s lawyers are trying to obtain from the court a free pass to download or upload music online illegally.”
Oppenheim said the woman’s arguments already have been rejected in the Verizon case, where a federal judge ruled that users are not anonymous when they publicly distribute music online.
In the middle of the subpoena struggle are the ISPs, which must turn over the identities of users according to the Digital Millennium Copyright Act. The ISPs argue they are not equipped to handle the RIAA’s legal onslaught.
“Some of our smaller ISPs are getting these [subpoenas], and they’re just not equipped for it,” NetCoalition spokesperson Ginny Sciabbarrasi told TechNewsWorld. “It requires huge resources not only financially, but also in people.”
Sciabbarrasi added that although the DMCA prevents ISP liability, much hinges on the validity of the subpoena. “If there’s anything wrong with it, the ISP is liable,” she said. “That’s a horrible place to be.”
Ineffective In the End
Yankee Group senior analyst Mike Goodman, referring to the 57 million people who downloaded music files last year, told TechNewsWorld that despite improvements to legitimate file-sharing networks, the recording industry still needs to change its fundamental business model to win over music fans.
Goodman said that because legal, for-pay file-trading services still are not giving consumers what they want — multiple recordings, portability to different devices and ownership of music — free file-sharing networks are continuing to thrive.
“In the end, [the subpoena strategy] is going to be ineffective,” Goodman said. “It doesn’t seem to have had much of an effect in slowing down the sharing.”
Why isn’t anyone even mentioning the fact that I.P. address’s can be spoofed! It happens all the time, look at anyone who has been under a dos attack and you will see they spoofed other peoples I.P. adress/s . So how does a judge give carte blanche subpoena powers to the R.I.A.A when they could actually be looking at a spoofed address? This needs to stop, the R.I.A.A seemingly has more power than our policing agencies!
Please! lets get the word out there that we need more proof than an I.P. address. This judge must have thought that having an I.P. address is proof that the owner of the account has knowledge of his/her account being used in online piracy and that is not always so!
Your own personal use of music that you own is not a violation of the Copyright Act. You can make copies of your CD’s (e.g., making a cassette copy) and listen to them on your home network if you so desire, provided that you do not broadcast to the public (which would likely be a violation of the copyright holder’s right of performance).
The infringement happens in a file sharing context when someone provides others with access to the song located on his hard drive, thereby circumventing the copyright owner’s exclusive rights to distribute and reproduce his work. The individual downloading a song also violates the Act, but I don’t want to write a book here, so I’ll just end it and hope that I have answered your question.
You can find the Copyright Act on the U.S. Copyright Office’s website. The particular section containing the bundle of rights conferred to the author (or other copyright owner) is 17 U.S.C. s. 106. It makes for wonderful reading.
Jay, you are so correct!
A few months ago I had the file sharing set up to share my ENTIRE 45 Gig hard drive! I was wondering how people were downloading some of my personal graphics files such as my entire Jessica Andrews and LeAnn Rimes pix files! (Over 1000 country music artist pix I had collected!) When I went to the traffic part of Kazaa. Funny thing was I had NO idea what was going on!
I asked a friend about this and how they could do it and he told me about how I was sharing my ENTIRE C drive. Not sure how I was able to do it but it happened! It IS pretty wierd seeing all the stuff on your system going out over the net!
I wonder how many others are unknowingly doing this? I really learned a lot from that situation!
First off – the RIAA has never liked MP3s. As a zealous group that not only went after MP3.com and napster with the same fervor as the witch hunters in the days of yore, it should come as no surprise that they use their momentum to hunt "users".
Second – as legislation of the term "user" has not yet been entirely defined, it is absurd to believe that the vast majority of "users" would have any particular knowledge so great as to be able to adjust or modify any settings that would allow or disallow other "users" to access their systems. Until such time as a computer system is introduced that is entirely 1) easy to use for even the simplest of human users with ubiquitous standards for operation, software interaction and HCI 2) is guaranteed secure from outside influence or action and 3) is completely standardized with software preference settings being able to be CLEARLY modified, adjusted and maintained by the simplest of human users – then there is no possible way to demonstrate that any user of a peer-to-peer software is guilty of anything more than downloading and installing software.
Which is not illegal.
As the last week of worms has proved – it is entirely possible for others to access your system and interfere with or command the system. It is entirely possible that someone else downloaded the material to your hard drive. It is entirely possible that the RIAA did it. Perhaps they should prove that they didn’t.
One of the most difficult things for the RIAA to prove would be the intent to commit the crime. See, most people over 25 are lucky if they know how to download anything from the net. Let’s face it – against the population of the planet – it’s a very small bunch. Next you have to consider the P2P software may have settings that a common user may never even know are set. For example – filesharing.
If this person who downloaded the software then only downloaded music from CD’s, Tapes, Albums that they ALREADY owned – and this material ended up in a "shared" folder that they had no idea was being shared with the world – are they guilty? No. Technology and the command of technology is an ever-shifting target. Systems are so completely vulnerable to outside influence that a simple user cannot be held accountable for the action of using P2P software – regardless of what this software does.
Neither can the software manufacturer be held responsible for the use of their product.
The RIAA has illegally misguided jurists and federal courts with Red Herrings and McGuffins under the guise of justice as they grapple with their understanding of their role in the next decade of music development. As they CRUSH the competition in order to maintain a monopoly of music distribution for their members – they are staining the reputation and value of music as an entertainment source.
The RIAA should be investigated as an illegal organization. Its motivations and tactics should be questioned and discussed in open forum on the floor of congress and the group disbanded and imprisoned for the potentially BILLIONS of dollars they have skimmed from the US Citizen, the havoc they have wrought in our legal system and the social impact of their onslaught against common americans.
Members of the RIAA, you should be ashamed.
Those opposed to the RIAA – do not let their divide and conquer stop you from enjoying the wonders of technology – and the broad benefits of immediate communication through a number of P2P tools that exist FOR FREE at various download locations online.
Peace – and GOOD WILL to all.
I use my computer to feed music to my stereo, which requires that the music files be parked in a shared folder on the computer. I have a firewall that prevents access to my network from outside, but I’m wondering if the very fact that I "share" the files this way within my own network constitutes illegal file sharing. How will the RIAA differentiate from this type of use and those who intentionally make their files available to users outside the host network?