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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'."
... I'm interested to see how will subsequent rulings will affect the 'unsecured wireless defense'.
__ Someday, but not this morning, I'll finally learn to use the preview button.
Rule 45 is fine and all, but what about Rule 34?
Fnord.
If the colleges won't help the RIAA with their "Investigations" could this be the beginning of the end of the RIAA going after college students? Let's hope so. They already gave up on Harvard, too many students and professors that actually understand the law.
IANAL.
The U. of Oregon is right that the IP address is insufficient to identify the infringer. But I don't think that is a valid reason to deny a subpoena. Currently, the RIAA knows the alleged infringement came from university. If they can subpoena information that reduces that down to 2 likely suspects, then that is perfectly valid. The fact that this evidence alone cannot identify the individual precisely doesn't mean that they don't have a case.
The bullying tactics the lawyers have used in the suits typically reside under the term of "unduly burdensome".
I am glad that the U. of Oregon stood up to these guys but it seems that the idea of a warrant or getting this information as being "unduly burdensome" seems pretty broad.
Is there a solid definition in these types of cases for what is really unduly burdensome?
ACK
If they can't identify "subscribers", how can they pass along DMCA complaints or terminate the accounts of repeat offenders? If they can't do those things, does that eliminate their Safe Harbor status?
If I were an RIAA shark, I'd smell blood in the water.
everyone still keeps acting like the riaa can be defeated with reason and legal leg work. as the recent jury trial showed, reason and legal legwork cannot defeat legions of well-funded lawyers. the only way to defeat the riaa is to wait them out
once there was a time when we were nothing but small mammals, and the world was ruled by terrible lizards. in the realm of intellectual property, this is that time. the internet, of course, obliterates the old economic models of distribution. the old economic models are the riaa's sustenance. so you defeat the riaa by waiting for it's food source to dry up
in the meantime, do what little mammals do best: be nocturnal, be quick, be small, be quiet. mask yourself, use proxies, do all manner of obfuscation and security through obscurity. the internet has no legal jurisdiction. don't fight them head on. just hide
there will be of course casualties, even a dying lizard can swing it's tail mightily. but in the end, it will be dead, and we shall inherit the earth. patience my friends. you cannot defeat the terrible lizard head on. just wait for it to die of starvation
it's economic model is history. the only one who doesn't know it is the riaa. there is no reasoning with the terrible beast, it's behaviors are not, and never have been, and never will be rational. you do not reason with a legal attack dog
wait, and the riaa will die. stop trying to reason with the unreasonable
suing soccer moms and grandmothers for thousands of dollars is not the actions of a rational entity. it is the mark of a last desperate stand, and the end is in sight
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I live in the same town.
With Phil Knight's money behind them, a former State Attorney General as the head of the school, and a liberal-leaning state, this could really spell out some issues for RIAA.
-- I really need to bleed off some of this
A subpoena for an IP trace ("tell me who owned this internet access account on this date") is not normally a burden. If the subpoena instead requested the school "identify who was using this computer at this time", the school's response fits. The subpoena requires the school investigate, not just disgorge a few records.
Maybe all the students in the dorm could each claim they were the guilty party? ("I'm Sparticus!")
www.cgstock.com
Agreed. However, when someone says, "We would like to help you bully people, but we just don't have the information you want." they're hardly taking a stand.
Go Ducks!
It's about time someone fought back. UofO has the backing of Phil Knight (founder of Nike), so there should be plenty of money to fight off the RIAA should things get ugly.
Monitor bandwidth usage on IIS6 in real-time: http://www.waetech.com/services/iisbm/
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
Back in the day, we used to tape tapes and albums with absolutely no consequences. And we still bought new tapes and albums anyway. Today, we are assumed to be criminals for doing the same thing, only now in digital format. What is a person to do?
I'll think I will stick to used CD stores for now. Reduce, reuse, recycle.
He who knows best knows how little he knows. - Thomas Jefferson
I was waiting to hear about this, RIAA/MPAA and other have been doing a lot of finger pointing and taking advantage of the legal system to do a lot of their work and people are realizing that RIAA/MPAA is collecting the money bot not necessarily paying the bills for investigation and enforcement.
I have been expecting the pendulum to swing the other way to either strike down these things due to the financial burden on the enforcement/ judicial/ corrections or to start taxing (rightly so) all those poor artists of which they have been protecting their rights.
"Enjoy what you're doing! If it becomes drudgery, you're doing it wrong!" - Jim Butterfield
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.
but i would assert that sea changes in business and culture can render your entire legal argument moot
for example, in a world where no artist signs with any music label, because they can get more money putting their own shingle on the internet, then the rights of labels that don't exist economically anymore don't have any meaning
it will take time to arrive at this new world, so perhaps we have to wait a lot longer than i might wish
to put it another way: there is a great legal framework in place concerning the rights of player piano music roll manufacturers
but in world where there are no player pianos, except in museums, then what does that legal framework mean?
likewise, i am not going to counter your legal arguments, your legal arguments are 100% correct
but i am going to say that over time, the entire legal realm the arguments you are making exist in will become defunct
it will take awhile, but you have an entire generation of young people who know what i am talking about. when such children are in their 40s and 50s, and are running whatever dried up remains of bertelsmann, coumbia records, etc. still exists, then what will any of this sound and fury really mean anymore?
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Lets see, If I where in a dorm room...
I would set up my own router with an name like $*@&_YOU
Then serve private IP to a firewall, then another to a wireless router
Then server the floor wireless.
Now, who did what?
I think that is the core of the UofO rebutial
-- I am the NRA, enough said...
"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."
Amusingly enough, the University of Oregon's President used to be the state Attorney General. I suspect he had an easier time getting the current AG's support than most university presidents have.
With reasonable men I will reason; with humane men I will plead; but to tyrants I will give no quarter. -- William Lloyd
Contrast this brave approach with Rensselaer Polytechnic Institute's decision to roll over and show its belly to the RIAA:
http://www.poly.rpi.edu/article_view.php3?view=5716&part=1
Maybe you're a more complicated person than I am.
I'm a simple man.
I see some bad guys picking on some defenseless people, I jump in and try to help. Whether I will ultimately win or lose is a matter of indifference to me, because I have no control over the ultimate outcome. What I have control of is that I am fighting on the right side.
All I know about the motion the Oregon State Attorney General made on behalf of the University of Oregon is this:
-it is legally right
-it is morally right
-it's the first time a university or an AG has stepped into this business since it began in February
-the RIAA lawyers can make no intelligible response to it, since it is based on facts which the RIAA's own witnesses have already admitted under oath, and
-it's a terrible blow to the RIAA, once which they never anticipated.
So I'm smiling. And you should be too.
Ray Beckerman +5 Insightful
It still does not reduce the poool of people by any reasonable amount....
If the room is dual occupancy, and there is evidence that the law was being broken using a PC in that room, and only one occupant of that room has a PC, then I'm sorry, but on balance it's looking like that person was the one breaking the law. Moreover, this is only 5 of the 17 Does. For another 9 of them, they do have the identity of the person whose credentials were used to access the wireless networking facilities, and apparently the argument is just that they can't prove the person who actually accessed the network was the person whose credentials were used.
Now, seriously, the university is claiming that in 16/17 cases, it can't identify the alleged infringers without interviewing or forensic examination. But is it being asked to, or is it just being asked to disclose the relevant information it does have so that further discovery can take place? This isn't the court case, and the University's information isn't a ruling that the law was actually broken. However, if you've got the credentials of someone whose computer is caught red-handed breaking the law, or the circumstances do realistically indicate whose computer was being used, then I think that is justification for seeking that interview and/or forensic examination via the court system to further the case.
I'm not a lawyer, so I can't comment on the legal technicalities that might be at work here, and I won't have much sympathy for the RIAA if it turns out that they've been abusing the system again. But on the face of it, this seems like a request for reasonable information from the University, based on a genuine belief that the law has been broken, and I don't see why it's inappropriate for the RIAA to attempt discovery here. If you start denying all discovery based on the possibility that someone with evidence against them may turn out not to be in the wrong, rather than conducting discovery and then examining the case in court, then it seems to me that you are breaking the legal system.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
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
I believe you are wrong on the point that anyone can derive revenue from recorded music. We have spent the last 10 years or so proving that everything on the Internet is free. All micropayment and subscription plans for the general public have failed. Nobody is interested in paying for something from site A when they can have the same (or at least similar) content from site B. There are no barriers to entry on the Internet that prevent site B from starting up and offering something similar to site A. Today most of the revenue on the Internet is from advertising, not subscriptions or sales.
I don't see any way artists can reverse this trend. It is going to be shared and redistributed for free no matter what the artist wants. They can't control this. Sure, they might get some money from dedicated die-hard fans but once their music reaches a level where it is "popular", that is the end of the revenue stream because it will be taken over by redistribution for free.
It is over for recorded music sales. The stuff has no value anymore. Nobody I know would pay a dime for music when they can get other music, just as good, for free.
This is all well and good when the party wanting the info happens to be the Bad Guy du jour. I wonder if there's any possible network abuse (spamming, sending death threats, any of the 4 horsemen (terrorist|drugdealer|kidnapper|childpornographer), etc) that might make people question the sense in not having a person accountable for a node's actions.
Also, I suspect that if the university can't find someone to pass the buck to, then it's going to stop with them.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Having known people that worked in the very IT department that received these letters i can say they obviously know who it was. This is an act of defiance and not an attempt at a subtle one. Given the attitude of most of the residents of Eugene this is not at all suprising and the university will most likely let them drag this through courts repeatedly before giving them what they want.
I want to see some media with an "RIAA Free" sticker on it so I know where to spend my money. I recently left grad school for a job that actually pays money, and now I don't really mind paying for records. I just want to know where to plop the cash so that I'm not feeding the beast that would have loved to attack me a year ago.
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
Ray Beckerman +5 Insightful
"Nice Porsche"
"Thanks"
"What's your father do?"
"Lawyer"
"Nice, What college are you going to?"
"Either Harvard or Yale"
Yeah, I'm sure they weep themselves to sleep at night.
The Kruger Dunning explains most post on