Oregon challenges RIAA university subpoena

Editor’s Note: This story is reprinted from Computerworld. For more Mac coverage, visit Computerworld’s Macintosh Knowledge Center.

In a move likely to be closely watched elsewhere in the nation, Oregon Attorney General Hardy Myers is seeking to quash a subpoena from the Recording Industry Association of America (RIAA) seeking the identities of 17 students at the University of Oregon who allegedly infringed music copyrights.

In a motion filed Oct. 31 in the U.S. District Court in Oregon, Myers said the move was based on the fact that the university was unable to identify the alleged music pirates based solely on the IP address information provided by the RIAA. Myers filed the motion on behalf of the state-run institution.

“The university had no other option but to file this motion,” said Stephanie Soden, a spokeswoman at the Department of Justice in Oregon. The university had received a prelitigation notice from the RIAA last summer asking it to help identify alleged music pirates and had already signaled its willingness to assist the group in whatever manner in could, Soden said.

“To then be on the receiving end of a subpoena that is quite broad in the way it was drafted” gave the university no choice but to seek to quash it, she said.

In its campaign to root out music piracy, the RIAA has been subpoenaing universities and Internet service providers for the identities of individuals it suspects of illegal file sharing. The modus operandi is to send the university — or Internet provider — a list of IP addresses on their networks that the RIAA claims was used for illegal file sharing. It then demands the institution to turn over the identities of the individuals to whom the IP addresses were assigned to.

In the Oregon University case, five of the 17 John Does in the RIAA subpoena accessed the copyrighted content in question from double occupancy dorms. “With regard to these Does, the university is able to identify only the room where the content was accessed and whether or not the computer used was a Macintosh or a PC,” Myers’ office said in an affidavit. But no login or other personally identifiable information was used by any of the five to authenticate themselves to the university network. As a result, it was impossible for the university to say for sure which specific individual might have accessed the copyrighted information in each case.

Similarly, while two of the 17 John Does accessed the content in question from single occupancy dorm rooms, the university does not know for sure whether the content was accessed by the students themselves or by visitors to those rooms. The remaining nine John Does in the RIAA subpoena accessed the content via the university’s wireless network using assigned usernames. But the university could not determine whether the content was accessed by the user the name was assigned to, or by someone else, Myers’ motion said.

Finding out that information would require the university to conduct numerous interviews and launch an investigation that the RIAA should handle if it wants, Soden said. “It really is quite burdensome. [The RIAA is] “using a broader and blunter tool than necessary and the university feels it doesn’t want to spend the resources needed to comply.”

Federal laws on student confidentially also made it impossible for the university to disclose the identities of individuals to the RIAA based solely on the IP address information, she said.

Ray Beckerman, a New York-based lawyer who has been defending individuals in RIAA suits, called Myer’s move potentially far-reaching. “I think this will inspire other colleges and universities to file objections or make motions to quash” similar subpoenas, Beckerman said.

The Oregon case goes to the heart of the IP-based identification method used by the RIAA to finger music infringers, he said. And what lends it weight is that the challenge is coming not from an individual but from a state attorney general, he said.

“What the university is saying is that if we were to just turn over the names that we are being asked for, we would be violating the law because we would potentially be turning over the names of folks who didn’t infringe,” he said.

An RIAA spokesman downplayed the efforts to quash the subpoena. “This is not the first attempt to quash a subpoena, nor do we expect it to be the last. In the handful of instances where this has occurred, the courts have overwhelmingly ruled in favor of the record companies,” he said.

He noted that the RIAA has so far sent out over 3,600 prelitigation notices since the start of its college initiative in February. Those notices typically offer alleged infringers a chance to settle with the RIAA before a formal lawsuit is filed. So far, the RIAA has filed approximately 100 named lawsuits under its college initiative. In total, since the RIAA began bringing lawsuits against file-sharers in the fall of 2003, it has filed more than 26,000 lawsuits, he said.

It won the first of such cases recently when a jury ordered a Minnesota woman to pay US$222,000 in damages to the RIAA for illegal music sharing.

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