[Commons-Law] File swapper fights RIAA subpoena

[Sunil Abraham]

http://news.com.com/2100-1025-5066754.html?part=dht&tag=ntop


By John Borland
Staff Writer, CNET News.com
August 21, 2003, 3:58 PM PT

update An anonymous California computer user went to court Thursday to
challenge the recording industry's file-trading subpoenas, charging that
they are unconstitutional and violate her right to privacy.

The legal motion, filed in Washington, D.C., federal court by a "Jane
Doe" Internet service subscriber, is the first from an individual whose
personal information has been subpoenaed by the Recording Industry
Association of America in recent months.

The RIAA has used court orders to try to identify more than 1,000
computer users it alleges have been offering copyrighted songs on
file-trading networks. It plans to use the information gained to file
copyright lawsuits against the individuals.


The motion was filed by a pair of Sacramento, Calif., attorneys who said
the RIAA had gone too far in its effort to protect its online
copyrights.

"This is more invasive than someone having secret access to the library
books you check out or the videos you rent," Glenn Peterson, one of the
attorneys, said in a statement. "The recent efforts of the music
industry to root out piracy have addressed a uniquely contemporary
problem with Draconian methods--good old-fashioned intimidation combined
with access to personal information that would make George Orwell
blush."

The Jane Doe motion comes as the first individual legal response to the
RIAA's effort to sue large numbers of file swappers. It follows similar
legal challenges from several Internet service providers (ISPs) and
colleges, including Pacific Bell Internet Services, an SBC
Communications subsidiary.

A Massachusetts federal court has already ruled that some of the group's
subpoenas, submitted to the Massachusetts Institute of Technology and
Boston College, had not followed the correct legal process and were
therefore invalid. That court left open the possibility that the RIAA
could simply refile those subpoenas properly, however.

According to documents filed with the court, Jane Doe used the Kazaa
file-swapping software as a music player largely to listen to songs she
had ripped from her own CDs and to music that came pre-loaded on her
family computer. She also "participated" in the Kazaa file-swapping
community but tried to prevent other people from accessing files on her
computer, the documents state.

On July 9, the RIAA sent her ISP, Verizon Communications, a subpoena
seeking her name, address, phone number and e-mail address. Verizon
contacted the anonymous subscriber on July 15, telling her that the
group was targeting her. After consulting with attorneys, she asked
Verizon to delay providing her information, because she would fight the
request.

The action filed Thursday is still a preliminary step before settling
down to fight on constitutional or other grounds. Because the RIAA
document was seeking information from Verizon, not directly from her,
she must first petition the court for the right to challenge the
subpoena herself.

In their briefs, her attorneys argued that the RIAA's unconventional
subpoena process has violated her rights to due process, privacy and
anonymous association, along with her contract with Verizon.

For its part, the RIAA said that Jane Doe's motion to intervene matters
little, because a federal court has already upheld the validity of the
subpoena process.

"The courts have already ruled that you're not anonymous when you're
publicly distributing music online," said Matt Oppenheim, senior vice
president at the RIAA. "Her lawyers are trying to obtain a free pass to
download or upload music online illegally. Their arguments have already
been addressed by federal court and been rejected."

The Electronic Frontier Foundation, a digital civil liberties group, is
also working with some individuals who say their screen names have been
the subject of RIAA subpoenas, but it has not yet filed any challenges
with the court. However, the group said in other kinds of cases such as
libel and defamation, the law allows individuals to intervene in ISP
subpoenas when their privacy is at stake.

"The most important issue is that if you are innocent, if the RIAA has
screwed up, it is critical that individuals have the ability to
challenge the subpoenas before their identifies are compromised," said
Fred von Lohmann, an EFF attorney. 


-- 
Sunil Abraham, sunil at mahiti.org http://www.mahiti.org
MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs'
314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA
Ph/Fax: +91 80 4150580. Mobile: 98455 12611
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