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'."

Comments

Re:Rule 45?

[Dachannien]

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.

Re:Unfortunately, this is a valid subpoena

[NewYorkCountryLawyer]

I think the issue all along has been that IP addresses are not persons. Yes, you can argue that the address has a responsible person behind it, and perhaps that's all the law cares about. But the RIAA needs to prove the infringing party is the same one who owns the IP address- not trivial. They are asking the ISP or University to decide who that is. All it takes is an uneducated person with an unsecured WAP and a savvy and unscrupulous wardriver and suddenly the ignorant have become copyright infringers. Leave your dorm room open and unattended or be unlucky enough to share an address with a dishonest roommate who points the finger at you could be enough to cause heaps of trouble. You have hit the nail on the head. The RIAA's investigation, at its best, only takes them to the dynamic IP address. That is not "all the law cares about". In copyright infringement, one cannot be held responsible for another's copyright infringement under 'secondary infringement' theory unless one affirmatively induced it.

Re:GO DUCKS!

[NewYorkCountryLawyer]

Yeah, that's my college there. My RA got a notice for infringement so his internet was shut off. He's in a room by himself, so he maybe be screwed. UO is a very progressive school in a liberal town, it's great to hear they're standing up for students. From the article it doesn't sound like they're protecting any of our rights, just complaining that it's difficult for them... Oh well, either way it protects the students. Yeah, but if you read the litigation documents carefully you'll see they ARE sticking up for the students' rights. They're saying "we're not going to give you someone's name if you don't have evidence that that person did in fact commit a copyright infringement".

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.

Re:Hopefully More Push-back Follows.

[Hierarch]

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:

• Extortion
• Fraud
• Blackmail
• Obstruction of Justice
• Racketeering

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.

Re:Unfortunately, this is a valid subpoena

[NewYorkCountryLawyer]

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.

Re:How's their safe harbor doing?

[peacefinder]

"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.