RIAA Secretly Tries to Get ISP Subscriber Info

NewYorkCountryLawyer writes "In an attempt to change the rules of the game, the RIAA secretly went to a federal district court in Denver with an ex parte application. The goal was to get the judge to rule that the federal Cable Communications Policy Act does not apply to the RIAA's attempts to get subscriber information (pdf) from cable companies. Just to clarify, ex parte means that the application was secret, no one else — neither the ISP nor the subscribers — were given notice that this was going on. They were, in effect, asking the Court to rule that the RIAA does not need to get a court order to be able to force an ISP to disclose confidential subscriber information. The Magistrate Judge declined to rule on the issue (pdf), but did give them the ex parte discovery order they were looking for."

Comments

...not so much

[Skadet]

This is not a comment on the PATRIOT Act. It is a comment on how the RIAA now has more power than the FBI, CIA, NSA, and local police combined. I think you're misunderstanding the order. They don't have free reign now. As I understand it, the RIAA can go in with the order, the ISP says, "I don't think so; we're challenging this." And that's how ex parte is played.

Re:...not so much

[NewYorkCountryLawyer]

That's not fair play, that's sneaky behind-the-back play... And your casual description shows you don't understand the import. The ISP will get a subpoena and court order... that's it. The John Does will get a subpoena and court order... and that's it. They will have no meaningful opportunity to take action against a fait accompli. Read here for my description of how this ex parte thing works.

Court did the right thing...

[spiritraveller]

Essentially, the RIAA was asking for a declaratory judgment against the ISPs. But the ISPs aren't even parties to the case. It makes far more sense for the court to provide the limited order than to give some sweeping declaration of the law on an ex parte motion.

They (the RIAA) are really reaching for anything that will make this easier for them. But going after an unknown defendant is never easy.

Hell, it's hard enough to go after a known defendant and collect your money after you've already won a judgment against him.

I wonder what kind of return they are getting on their investment here. If they can't even get a settlement proposal to a defendant before going to a judge, and more of those who do get served are fighting it... I would think the returns will begin to diminish.

Coupled with the good will they are losing (assuming they even factor that in), they may decide this is a lost battle at some point... But that's just rampant speculation. I'm curious if NewYorkCountryLawyer thinks that this insanity will ever end... If not, maybe I should change my area of practice (that would be defending the criminally accused, an area of the law which is almost completely lacking in geekery).

Re:Where's the problem?

[Grashnak]

The problem is they don't have to actually prove anything to a court before demanding this information from an ISP. "We think someone using ATT is downloading. Give us all the names, addresses, and connection data for all your subscribers please, so we can find out if they actually are doing anything wrong" is sort of the exact opposite of the way privacy is supposed to be protected. The mere suspicion of generalized wrong-doing does not justify releasing this kind of information to a party that has already proven itself less than meticulous in its respect for legal practice and privacy protection.

Two words for the RIAA

[deblau]

Here are some headlines from Ray Beckerman's blog:

• In New Contested Cases in Brooklyn Federal Court, Defendants Challenge Status of RIAA Cases as "Related"
• Wolfpack Stands Up to the RIAA; NC State Students to Fight Back (Corrected article)
• RIAA Subpoenas High School Student for Deposition; Demands He Miss Class; Gives Only 1-Day Notice; in Houston, Texas, case
  • RIAA Drops Case in Which it Pursued High School Student on 24-hours' notice
• Judge Denies RIAA "Reconsideration" Motion in Capitol v. Foster, Calls Plaintiffs' Counsel "Disingenuous", Motives "Questionable"
• Battle Rages Over Counterclaims in Atlantic v. Andersen
• RIAA Goes Into Court "Ex Parte" in Denver, Colorado, Tries to Get Ruling that it Doesn't Need Court Order to Get Subscriber Info from ISP's
  • SONY v. Merchant Heats Up in Fresno; Defendants' Lawyer Attacks RIAA "Ex parte" procedures
• Defendant Opposes RIAA Motion to Dismiss Counterclaims in Corpus Christi case, Atlantic v. Boggs
• Ms. Lindor Moves to Exclude RIAA Expert Testimony For Failure to Meet Reliability Standards Under Daubert

I know the record labels were hoping that people they sued would just "roll over" and settle. However, here are the two words that describe the real situation: "game on."

Re:Where's the problem?

[element-o.p.]

IANAL, but I have worked the abuse desk at an ISP, and therefore, I have fielded my share of RIAA/BSA/MPAA complaints and I have researched subscriber information for several subpoena requests. As I understand the process, you don't have to file suit to get subscriber information; all you have to do is get a court order requesting subscriber information. Consequently, I don't believe that this is a tactic to avoid getting burned by the backlash from the "John Doe" lawsuits -- they already had a method by which they could get subscriber information without exposing themselves to barristry charges, etc.

Re:definition of ex parte

[NewYorkCountryLawyer]

Your discussion of "ex parte" is incorrect. It has a specific legal meaning in the U.S., which is "without notice".

But you are right on when you say

The first question the judge should be asking is where the affected parties are and why they aren't at the court.