RIAA College Litigations Getting A Bumpy Ride

NewYorkCountryLawyer writes "The RIAA's juggernaut against colleges, started in February of this year, seems to be having a bumpier and bumpier ride. The normal game is to call for a subpoena, to get the name and address of the students or staff who might have used a certain IP address. The normal game seems to be getting disrupted here and there. A Virginia judge threw the RIAA's motion out the window, saying that it was not entitled to such discovery, in a case against students at the College of William & Mary. A New Mexico judge denied the application on the ground that there was no reason for it to be so secretive, in a case involving University of New Mexico students. He ultimately required the RIAA to serve a full set of all of the underlying papers, for each 'John Doe' named, and to give the students 40 days in which to review the papers with counsel, and make a motion to quash if they chose to do so. In a stunning development, the Attorney General of the State of Oregon made a motion to quash the RIAA's subpoena on behalf of the University of Oregon, on grounds which are fully applicable to every case the RIAA has brought to date: the lack of scientific validity to the RIAA's "identification" evidence. The motion is pending as of this writing. Students have themselves made motions to vacate the RIAA's ex parte orders and/or quash subpoenas in over half a dozen cases. Much combat remains, but the RIAA's campaign is no longer a hot knife cutting through butter on the nation's campuses."

Comments

Re:Excellent - Ex Parte described!!!

[Nom du Keyboard]

Ex parte means that only one side of a case is heard by the judge -- in this case, the RIAA's view of things -- before he makes a decision such as issuing a subpoena to a college, university, or commercial ISP. This goes against the grain of courts hearing from both sides of an issue before making a decision, and is normally used only under exceptional circumstances. The RIAA claims that these are such exceptional circumstances due to the following reasons:

1: The RIAA claims that because they don't know who their Doe defendants are until after they have conducted discovery (meaning that they get the ISP under court order to reveal which subscriber was assigned a specified TCP/IP address at a given time), that they cannot serve them with papers and allow them to participate in the court proceedings.

2: The RIAA claims a need for Expedited Discovery (they get it right away, rather than waiting through hearings of whether they're actually entitiled to it, or not) on the claim that ISP server logs are only kept for limited periods of time, and if they don't get it immediately -- rather than waiting for a proper judicial process that protects both the Plaintiffs', and the Defendants', rights -- that it will be lost to them forever.

Both these claims are bogus garbage. Litigation documents sent to an ISP can be passed along to the subscriber of the service that the ISP intends to identify if forced by the courts. This can be done without telling the RIAA who this person is yet. And as for preserving evidence, once it becomes a matter of a lawsuit, ISP's can and do preserve the access logs forever, again not turning them over to the RIAA hounds until all proper procedures are followed.

However, when the only person the judge hears from are the RIAA lawyers, there is no one present to argue the opposite side. As such, the RIAA has been able so far to run roughshod over the rights of the Defendants, dismiss that case before their use of the evidence gathered in the method above can be challenged in that case, and then take what they illegally got away with there and use in individual cases where, to my knowledge (IANAL), how they got your subscriber information cannot be challenged.

So ex parte basically means in secret, or without the other party present, which is a lousy way to conduct justice!