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U.of Oregon Says No to RIAA
NewYorkCountryLawyer writes "The University of Oregon has filed a motion to quash the RIAA's subpoena for information on student identities in what is believed to be the first such motion made by a university with support from the state Attorney General. The motion (pdf) explains that it is impossible to identify the alleged infringers from the information the RIAA has presented: 'Five of the seventeen John Does accessed the content in question from double occupancy dorm rooms at the University. 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 ... The University cannot determine whether the content in question accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor.' The AG's motion further argues (pdf) that "Plaintiffs' subpoena is unduly burdensome and overbroad. It seeks information that the University does not readily possess. In order to attempt to comply with the subpoena, the University would be forced to undertake an investigation to create discovery for Plaintiffs — an obligation not imposed by Rule 45. As the University is unable to identify the alleged infringers with any accuracy, it cannot comply with its federal obligation to notify students potentially affected by the subpoena. One commentator has likened the AG's argument to saying, in effect, that the RIAA's evidence is 'rubbish'."
Correct me if I'm wrong, but rule 34 applies strictly to parties to an action (meaning, the plaintiff(s) or defendant(s)). University of Oregon is neither, so they have to be subpoenaed per rule 45.
You are correct. Rule 34 is inapplicable.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
BTW, to the genius mod who rated me off-topic:
http://www.law.cornell.edu/rules/frcp/Rule34.htm
When they say "this subpoena would require us to conduct an investigation" they are in effect saying "the RIAA hasn't conducted an appropriate investigation".
In fact, I'll go one step further: when they point out to the Court that the RIAA's evidence doesn't point to a copyright infringer,
-they are saying something that is fully applicable to all of the RIAA's lawsuits, both those against college students and those against the general populace,
-they are only saying what the RIAA has admitted under oath at the Capitol v. Thomas trial and in the deposition of Dr. Jacobson in UMG v. Lindor, and
-they are in effect sticking up for ALL of us.
Ray Beckerman +5 Insightful
There's a reason you were modded off-topic. It's because the joke did Mach 4 over your head.
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"And may your days be long upon the earth."
not to shield yourself from prosecution when you knowingly and repeatedly download copyrighted music that you do not pay for
C'mon, it's unbelievable that still here on /. there are people which believe that it's unlawful to download. The copyright infringement is actually the distribution, i.e. the uploading. Looks like the RIAA's PR campaign does it's job ...
Except you're overlooking the fact that under the law the RIAA is not entitled to the identity information unless it has evidence, in a form that would be admissible at trial, sufficient to established that the "John Doe" whose identity is being sought has infringed the plaintiffs' copyrights. And the AG is so delicately and so accurately pointing out that the evidence does not so indicate.
Ray Beckerman +5 Insightful
RICO is so often brought up in these discussions that I finally went looking to see what it would take to get a RICO indictment and eventual conviction. I'm not so sure that it applies.
Note: I got my RICO information from Wikipedia, so take it for what it's worth.
First off, RICO requires that the individual or groups commit two of 35 different crimes. Extortion is in the list, but not many of the other crimes could apply to the RIAA no matter how far we stretch them. I think even extortion is a bit of a stretch. The ones that are even worth considering are:
I think we can ignore things like murder-for-hire, slavery, etc.
There's a fine line between extortion and blackmail. In both cases, there's a threat for gain. "Pay up or else!" In extortion, the threat is generally something illegal; for blackmail, the threat is normally something that would be legal, if it weren't being done as part of the threat for gain. Certainly, the RIAA is well within the bounds of legal behavior to bring lawsuits, and the courts are very reluctant to limit access to the courts under any circumstances.
To show extortion, one would need to demonstrate that bringing the suits is, itself, improper. That's not impossible, particularly if we can prove that the RIAA threatened litigation that it knew it couldn't win, but there are other rules for dealing with threats of frivolous lawsuits. My knowledge of that end of the law is pretty shaky — does anybody know what those rules are? Does anyone know if one can use them to demonstrate that the legal threat was, in fact, extortion?
For blackmail, one merely needs to demonstrate that the threat was used for gain. Unfortunately, once again, the courts like to encourage parties to settle. Settlement negotiations are almost impossible to characterize as blackmail.
RICO was written with obstruction of justice in mind. The idea was that organized crime would threaten witnesses, suborn testimony, etc. Some of the things that I've heard in a few RIAA cases do push this line, but I don't think they cross it. There's a big difference between trying to subpoena a minor and depose her outside the presence of her guardian, versus saying "If you testify, I'll kill your pets, your kids, and your grandparents, in alphabetical order."
Fraud only seems to apply if the letters they send out contain fraudulent offers. I'm not sure how this could apply, but it's worth examination.
Racketeering refers to a completely illegal business model - e.g., a "Protection Racket," where you pay for "insurance" against bad things happening to your business — where the bad things are the insurer actively trashing your business. If extortion applies to a large proportion of lawsuits (enough to show a clear, deliberate pattern), then racketeering probably applies as well. However, I don't think extortion could be demonstrated.
Ultimately, much as I'd personally love to see RICO applied, I don't think it does. They key point is that the courts don't like to limit access to the courts, even by a chilling effect. Everybody has a right to their day in court. That, in turn, leads to the abuses we see where a big corporation can afford more and bigger lawyers than small mom-and-pop businesses, who settle cases that they could win because they'd lose more money in legal fees than the settlement.
What we need is a revamp of this part of the legal system. Frankly, I don't see how that can be done without free, government-appointed counsel in every case, which is even less workable than the current system.
--Somebody infect me with a
You can sue "John Doe", with the understanding that you'll hopefully find out who he is during the discovery process.
Except you are confusing police powers executed in the investigation of a criminal act to a civil case where there are no police powers being executed. Since the *IAA is not the police I can obstruct their investigation all I want and their only recourse is to litigate, if that. Once a judge orders you to comply, then you might get charged with contempt, but obstructing is reserved for official investigations of which this one is not.
It would be more analogous to someone breaking your window and you find a bat in someone's yard with glass on it. You then demand the homeowner to determine who, if anyone, in their home broke the window without even proving that the bat was used in the act in the first place.
The University is not required to do the *IAA's investigation for them and refusing to do so is in no way obstructing an official investigation, since the *IAA is not the police.
You have to have evidence that the person you're suing has committed the copyright infringement before the Court can permit discovery of his identity information. As Oregon's AG pointed out, the RIAA doesn't have such evidence.
Ray Beckerman +5 Insightful
It's not the RIAA that's doing this, it's 4 large record companies who are hiding behind the RIAA as a way of concealing their antitrust law-prohibited conduct. I have never seen any plaintiff who is not a label owned by the big 4. There are hundreds of other record companies who are RIAA members who have not been a part of any of these lawsuits. If I were an RIAA member I would be asking law enforcement authorities to investigate.
Ray Beckerman +5 Insightful
Okay, well I do wish you luck if you try to argue that someone snuck into your dorm room (and no one else's!) without your knowledge, carrying bootable equipment, opened the P2P programs on your OS, downloaded copyrighted files, and then vanished with no clear benefit to himself, without creating any witnesses or appearing on any video cameras.
Umm, hell people don't notice much larger things than someone (say, another student) wandering into someone else's dorm room and futzing with their computer for a while. Ever watch *any* cop tv show? People don't notice murderers wandering into neighboor's houses/apartments. And they usually catch the killer on TV!
Plus, did you miss the boot Knoppix + plug in flash drive? Music doesn't take hours to download, and that's what we're talking about.
Let me also address several other points:
1. Video camera's? How many *DORM ROOMS* have survellience cameras installed? How many *DORM ROOMS* have 2 people with access who regularily let in other people to hang out and do stuff? We're not talking about Mission Impossible break in people in black skinsuits here, we're talking other college students. How are you picking them out of survellience video anyway?
2. no one else's dorm room? I'll bet the RIAA is handing over more than 1 request - likely 10+.
3. Not reporting theft of a firearm? Not sure what the point here is but what if you don't notice the firearm is gone? If you think it's safely locked up, you may not check on it often. Maybe not for a year (next hunting season?). Likewise, how would you know (unless you really set up all sorts of software logging) if someone ran a portable app to save to a flash drive some music, or booted into Knoppix and saved to a flash drive/network share?
Opera, Proxomitron-Grypen,GPG 0x0A1C6EE3
I read it as "your evidence doesn't show that the person to whom the IP address is registered is a copyright infringer, and we are prohibited by law from divulging any identity information about anyone else".
Ray Beckerman +5 Insightful
"If I were an RIAA shark, I'd smell blood in the water."
Well, yes. But the question is, whose blood?
As I said elsewhere, the U.O. President is a former dean of the U.O. Law School, and a former Attorney General of the State of Oregon. His university bio says he argued seven cases before the US Supreme Court as state AG and won six, and goes on to say that's more cases and a better record than any other contemporary State A.G. Its almost impossible to imagine that the University took this step without consulting him, and it's equally difficult to imagine he's misjudged the strength of their case or that he's afraid to take it all the way to the US Supreme Court.
I think the RIAA's sharks have just bitten a much bigger shark. If they aren't looking for a way to swim away quietly, they're in for a hell of a fight.
With reasonable men I will reason; with humane men I will plead; but to tyrants I will give no quarter. -- William Lloyd
Ray Beckerman +5 Insightful