RIAA's Boston University Subpoena Quashed

NewYorkCountryLawyer writes "As first reported by p2pnet, the motion to quash the RIAA's subpoena seeking identities of Boston University students has been granted, at least for the moment. In a 52-page opinion (pdf) the Judge concluded that she could not decide whether or not to quash until she had seen the college's 'Terms of Service Agreement' for internet service. It was only then she could decide what 'expectation of privacy' the students had. She quashed the subpoena calling for the student identities, and told them they could go ahead with a subpoena just for the terms of service agreement. Interestingly the decision was issued on the very same day as the judge in Elektra v. Barker came to some of the same conclusions."

Comments

quash this

[BorgCopyeditor]

Good news, but that's still three too many uses of "quash."

Re:quash this

[JustShootMe]

Oh come on. I can see my comment being moderated as "offtopic", but whatever moderator moderated *this* as offtopic must be smoking farking CRACK.

Do we have a moderator with too many mod points and not enough brain cells on the loose?

Re:quash this

[Ethanol-fueled]

Apparently, we do. How many times have we seen prior unmoderated comments modded as "overrated"? Shit, mods, save your negative mods for the *nimp-ies and the goats-ies. This post will be modded -1 troll and -1 offtopic, and I don't give a flying fuck.

That sounds painful...

[JustShootMe]

To have that quashed. It'll turn all purple and stuff, and it'll hurt to pee...

Oh? What's that? SubPEONA?

Nevermind.

Re:That sounds painful...

[Anonymous Coward]

It'll turn all purple and stuff...

Dude, it should already be purple - you should see a doctor!

.

Getting Closer

[Hempy]

It looks like our Judges are finally getting a little closer to actually getting a clue when it comes to modern issues. If only we can convince them to pass a ruling to end these RIAA witch hunts we might be able to focus on some more important and pressing issues. Hey a guy can wish!

Re:Getting Closer

[Dada Vinci]

The only court that can eliminate RIAA suits across the country is the Supreme Court. This case is in a trial court. The powers of a trial court are MUCH more limited.

A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a different federal court and get a different outcome.

The next stop for this case would be an apellate court. The federal Court of Appeals for the First Circuit is the appellate court that would hear the appeal. If the appellate court rules in favor of the students, then all of the trial courts in a limited geographic area (Maine, Mass, New Hampshire, Rhode Island) are bound. If the RIAA filed outside that area then a different court could come up with a different outcome.

The next stop from the First Circuit would be the Supreme Court. The Supreme Court's interpretation of the laws is binding nationwide. But, the Supreme Court hears less than 1% of the cases that people appeal. The odds of this case setting a national precedent are VERY low.

Of course, other judges can be pursuaded by the reasoning in this case, but there's nothing binding about it.

Re:Getting Closer

[nomadic]

The only court that can eliminate RIAA suits across the country is the Supreme Court. This case is in a trial court. The powers of a trial court are MUCH more limited.

A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a different federal court and get a different outcome.

But precedent is really important where you want to bind other future litigants. When the litigant is the same you can get an order in one court that will bind them no matter where they operate. In this case the same entities are commencing the various lawsuits in the different jurisdictions. The court could enter, for example, an anti-suit injunction against the RIAA to prevent further similar lawsuits if they wanted, and if the RIAA filed the same suit in a different federal court they'd get slapped with contempt in the court issuing the anti-suit injunction.

Re:Getting Closer

[Dada Vinci]

Anything you said might make sense if the students were actually suing the RIAA or filing an anti-SLAPP lawsuit. But the students are moving to quash a subpeona, not suing the RIAA for malicious prosecution. The fact that the judge has already called it a close question, in effect, by issuing this ruling means that the judge is extremely unlikely to, on her own, decide to turn this into an anti-suit injunction.

Re:Getting Closer

[drmerope]

A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a different federal court and get a different outcome.

Yes, it could, but that needlessly minimizes the point here. When you go to argue a motion to judge, you present not only binding precedents from above but lateral precedents as well. If the reasoning therein is sound, this is usually good enough. Indeed, this is the COMMON case is areas of new law.

Most precedent gets established by spontaneous coordination. The appeals court and the supreme court only get involved in a small fraction of that activity--either when the trial court reasoning is unsound or when inconsistencies are present. Even when, say, an Appeals court sets precedent, its often the promulgation of a practice well-established in the lower courts but not yet consistently applied.

Re:Getting Closer

[Foobar of Borg]

The federal Court of Appeals for the First Circuit is the appellate court that would hear the appeal. If the appellate court rules in favor of the students, then all of the trial courts in a limited geographic area (Maine, Mass, New Hampshire, Rhode Island) are bound. If the RIAA filed outside that area then a different court could come up with a different outcome.

While technically true, binding precedents in other Circuit Courts can be persuasive authority. If all the Circuit courts rule the same way, then a Supreme Court ruling is unneccesary. If several rule and there are major discrepancies, then the Supremes will more likely feel the need to rule in order to establish uniformity.

Won't hold forever

[Todd Knarr]

I'd note that I don't expect these roadblocks to the RIAA getting student's identities to hold forever. It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against. The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement. That's probably a significant hurdle, but if the RIAA clears it then the students will not be able to block discovery of their identities.

Re:Won't hold forever

[Admiral Justin]

It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against

Except that more and more of the claims are being shown to not be legit.

Besides, there are circumstances where such anonymity is a critical point to service or business. Journalist sources, for example.

Re:Won't hold forever

[timmarhy]

it's not up to the legal system ethier, thats the double egded sword RIAA are playing with and they just got a little nick imho.

Re:Won't hold forever

[rhizome]

The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement.

I have no problem with this. In fact, I'd love to see the RIAA try to do this, merely for the effect that having actual evidence of copyright infringement would have on these cases.

That said, I will always have sources for free music that the RIAA will never be able to do anything about.

Re:Won't hold forever

[TheRealMindChild]

It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against.

That's just it! Prove to me you HAVE a legitimate claim, THEN you can have the name. Else, bringing up any bogus lawsuit would be easy means of finding anyone's identity.

Re:Won't hold forever

[evanbd]

I'd note that I don't expect these roadblocks to the RIAA getting student's identities to hold forever. It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against. The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement. That's probably a significant hurdle, but if the RIAA clears it then the students will not be able to block discovery of their identities.

So perhaps the courts should be requiring them to demonstrate the legitimateness of the claim first. Especially the highly-questionable joinder of unrelated cases solely for purposes of discovery, followed by dropping of the suit and re-filing individual suits.

Re:Won't hold forever

[NewYorkCountryLawyer]

So perhaps the courts should be requiring them to demonstrate the legitimateness of the claim first. Especially the highly-questionable joinder of unrelated cases solely for purposes of discovery, followed by dropping of the suit and re-filing individual suits. Exactly.

Re:Won't hold forever

[TubeSteak]

Students are also a special breed type of legal entity, since the Family Educational Rights and Privacy Act (FERPA) gives them extra privacy protections that the average person would not have.

I'm surprised the Judge is debating whether the school's TOS for internet use trumps FERPA.

Re:Won't hold forever

[CorSci81]

I had a question regarding the improper joinder. I noticed on pages 9 and 10 this judge has consolidated multiple John Doe cases on account of "similar, even virtually identical, issues of law and fact" for "administrative efficiency". Whereas other judges have frequently brought up this same issues of improper joinder. What's the difference (if any) in these circumstances? I fail to see why consolidation should be appropriate here where other judges have considered it improper.

Re:Won't hold forever

[rohan972]

Perhaps the appropriateness depends on the goal. If an organisation wants to consolidate multiple cases in order to abuse the legal system more efficiently, it is inappropriate. If a judge wants to consolidate cases in order to more efficiently smack down an organisation for legal shenanigans, it is appropriate.

Re:Won't hold forever

[jgoemat]

Unfortunately it seems that hick jurors (which you tend to get in Federal Court) don't give a darn. Look at the $200,000+ that was awarded against that poor woman. So the RIAA just has to prove it to the satisfaction of some random people that don't have to even own a computer.

Re:Won't hold forever

[NewYorkCountryLawyer]

1. The joinder is flatly prohibited under the federal rules.

2. Judge Gertner's automatic consolidation of each new RIAA case is, in my personal opinion, also contrary to law under these circumstances, and is certainly grossly unfair to the defendants.

Re:Won't hold forever

[NewYorkCountryLawyer]

That was an unusual situation; you shouldn't generalize from one trial. I believe that the RIAA is mostly going to get killed in the jury trials, and so does the RIAA believe that, or else there would have been more than just one jury trial in 30,000 cases over 4 1/2 years.

Re:Won't hold forever

[TheLuggage2008]

The above post may or may not be worthy of moding up, but moding it down as redundant was stupid.

He's a lawyer, validating (what appears to be) a non-lawyer's posting on a legal issue... seems to me that clarifies the legitimacy of the OP, unless of course, that has no value on /.

Re:Won't hold forever

[NewYorkCountryLawyer]

Thank you, TheLuggage. Don't worry. I have an overabundance of good kharma. I do personally think that when it's the author of the story engaging in dialogue with people who have commented on the story, which is actually pretty rare from what I've seen, they should cut him a little slack on how high to set the bar on profundity. But... what the heck.

Here's what I found from MITnet

[Seakip18]

http://web.mit.edu/olh/Rules/

I'm not an MIT student so perhaps one of them will come up a more inclusive document that states the TOS in using their network.

http://web.mit.edu/olh/Rules/#rule_4
All in all, what I saw when I read through that was that it DID not say whether or not MIT would surrender any information in case of a lawsuit against the network.

Maybe

[Seakip18]

Maybe I shouldn't try to post to /. after drinking on a Saturday afternoon. It causes me to revert to "Some place up dar!" Obviously Boston Uni and MIT are much different institutions.

Anyways, the documents I MEANT to find are no where to be found in a quick search. Perhaps someone there can be of use. Anywho, flame me away for my stupidity. Back to drinking!

Re:Maybe

[Anonymous Coward]

i've been throwing around mod points, replying, and drinking all saturday afternoon. Kudos to the drinking nerds! Didn't even try to do a quick search. I just want to talk. That's drinking, and that's lazy. If I post anonymously I won't lose the +1 I did for a few posts down. The guy who used his PSP on another's MAC address. Beautiful! *Drinks some gin*

Obligatory

[Anonymous Coward]

Fuck the RIAA?

When all the dust settles

[Bananatree3]

in a few years, I hope this epic chapter in lawsuit history will be used as a benchmark for what NOT to do.

Here's the thing

[kilodelta]

Just change one's MAC address and you get a new IP address. And NIC's made for the past 10 years or so have allowed you to muck with the MAC address.

Re:Here's the thing

[corsec67]

And at the school I went to (CU), once you signed up a MAC address as being valid, any device could use that MAC to authenticate against the wifi service.

I actually used that to get my PSP online when it first came out, Wipeout was the only game that could get online, but the simple web browser (something like Links with graphics in terms of capability) couldn't figure out the login page that CU put up.
So, I had a friend change the MAC address on his laptop to that of my PSP, I signed it up as being "mine", and then my PSP worked on the wifi.

So, the the device I used to register the MAC address had absolutely nothing to do with the device that I was using most of the time that actually had that MAC address built in.

A MAC address is about as identifying as a nametag.

terms of use policy

[pikine]

Do they really need to subpoena it? It's right here.

Re:terms of use policy

[Anonymous Coward]

They aren't subpoena-ing to find out what the TOU *is*, they've been granted the right to ask for the information, and ONLY the information that school is willing to give out, as provided by the TOU.

So if the TOU says, we'll give first names, or birthdays, or just a big, "it was used on tuesday from 3-5pm by SOMEONE", then that's all the RIAA can ask for. They can't ask to know anything that a student can expect to have protected via the TOU.

Re:terms of use policy

[Steve1952]

It says that BU may inspect the files, but it doesn't say anything about sharing the data with third parties:

"Boston University reserves the right, without notice, to limit or restrict any individual's use, and to inspect, copy, remove or otherwise alter any data, file, or system resource which may undermine the authorized use of any computing facility or which is used in violation of University rules or policies. Boston University also reserves the right periodically to examine any system and any other rights necessary to protect its computing facilities."

Re:terms of use policy

[jonberling]

I think its ironic that a web page called Computing Ethics denies the basic right to privacy to all BU students. Seems ... well, unethical.

Re:Won't hold forever-YOUR ARUGMENT DOESN'T HOLD W

[Nom du Keyboard]

It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against.

The problem with your argument is that the plaintiffs don't have legitimate claims. They can't prove actual uploading, actual downloading, and making available isn't in the Copyright Act. It's not the filesharer's fault that the law hasn't caught up to their activities, and the RIAA shouldn't be allowed to try and create new law where Congress hasn't acted yet.

Re:Won't hold forever-YOUR ARUGMENT DOESN'T HOLD W

[NewYorkCountryLawyer]

the RIAA shouldn't be allowed to try and create new law where Congress hasn't acted yet Spoilsport.