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Judge Excludes 3 "John Does" From RIAA Subpoena
NewYorkCountryLawyer writes "In one of the RIAA's 'John Doe' cases targeting Boston University students, after the University wrote to the Court saying that it could not identify three of the John Does 'to a reasonable degree of technical certainty,' Judge Nancy Gertner deemed the University's letter a 'motion to quash,' and granted it, quashing the subpoena as to those defendants. In the very brief docket entry (PDF) containing her decision, she noted that 'compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery.' There is an important lesson to be learned from this ruling: if the IT departments of the colleges and universities targeted by the RIAA would be honest, and explain to the Courts the problems with the identification and other technical issues, there is a good chance the subpoenas will be vacated. Certainly, there is now a judicial precedent for that principle. One commentator asks whether this holding 'represents the death knell to some, if not all, of the RIAA's efforts to use American university staff as copyright cops.'"
The suddenoutbreakofcommonsense shown on this small scale is coming too late, I fear. Because even now, ISPs are caving to big media. Phorm worms its way through many UK ISPs, apparently undiminished. A consortium of service providers have agreed to keep tabs on the situation for the record insdustry, amongst others, and send out warning letters to infringers. Usenet has been all but dropped from the roster of ISP services.
Unlike the naysayers, I always believed that the internet would remain free. After all, ISPs have always been protected as carriers, just like the postal service - and the postal service is not subject to search and seizure without due process. Nobody can open my private mail (unless it crosses borders) and check for pirated DVDs, without a really good reason to suspect that I'm pirating DVDs.
But I was wrong, and stupid, and for once in my damn life, too optimistic.
Because for every smart call like the one above, there are ten stories of companies we need to be able to trust voluntarily caving to pressure. It's too damn late.
Isn't every one of these stories tagged as being the death knell for the RIAA? Don't get me wrong, I'm always glad to see the RIAA losing in these types of cases, but 'death knell for the RIAA' is getting to be 'Year for Linux on the Desktop'.
I will shred my adversaries. Pull their eyes out just enough to turn them towards their mewing, mutilated faces. Illyria
Sad but true. just leaving the problem that I can change my mac address and even with username/pass systems pilfering a login/pass from a com girl or arts student in my uni would be childsplay
I would like to see more discussion on that actually. I understand that anonymity is sort of the thing that makes the internet great.
Is having a static home address (123 Cherry Lane) preventing anonymity in the real world? Is that a valid comparison?
It seems like the point above could/should be a concern to an average user, retaining your identity?
Via other legislation, it looks like colleges and universities in the US are going to be expected to take active steps - training and education, and likely technical as well - to curb piracy or else risk losing federal funding. It's part of the "Higher Education Opportunity Act". They're now in the "rulemaking" phase, but I find it hard to believe that the Department of Education is going to be particularly accommodating, and I'm not confident that the new administration will be substantially better than the old on this issue. I think this case is going to give the RIAA/MPAA and their allies in congress something to point at to say "See! We need more protection".
If we're required to do blocking and monitoring, the BU defense won't hold, because we'll have the data. At this point, the biggest factor is the delay. If you're a university buying service through a provider, and the letter goes to them first, it takes at least a week, often more, to get to you. By that point, there's usually not even any reason to look for the torrent they're complaining about.
Doubtful. The president/executive branch has very little influence on the lower courts. They weigh in on matters that will directly affect them, such as national security, but file sharing tends to be pretty low on the list of important things to the executive branch.
Biden has also a history of being pretty pro-copyright, so that would actually skew it the other way.
I think it has more to do with the courts (especially specific judges) getting sick of the RIAA.
Policing the network requires a mindset which assumes the students will do bad things and the administration is determined to catch and punish accused systems perpetrators.
Managing the network, as your example shows, is the proper implementation of policies and configurations which allow the University community to effectively perform their work.
Managing the network is more effective and provides a more collegial atmosphere.
In my CS Department, all the information which could be used by the RIAA to track student usage of systems is NOT logged. Attempts to obtain unauthorized access are logged; but not successful authorized access. [All you security types can take your immediate objections and stuff them in your policy orifice.]
If you have a solution that is a decent and fair plan that both acknowledges new technologies and the possibilities that they bring AND the rights of the rightholders to be fairly compensated and to reasonably punish/recover from wrongdoers, I for one would be interested in hearing it.
Here's the thing about copyright in the digital age. For software, music, videos, the marginal (per additional copy) cost is zero. Now, given that it takes no effort to copy it, and anybody can do it in his own home (or his parents' I suppose), how can you realistically stop that, without invading everyone's privacy? How can you even really know that they're doing it? Same thing with downloading it: the only way to know is to invade the privacy of the people by monitoring all their transfers. And even then, it's an imperfect system. How do you know what they have the right to down/upload? How do you deal with authorization? What about false positives? False negatives?
Also, your argument about how it's a regressive wealth transfer from the poor to the wealthy is a bit off-track. If the government(s) imposed a tax on everyone that was used to compensate artists for the creation, it will most likely be nowhere near as draconian as you make it seem. It's not like the government will charge a flat tax on everyone. Presumably, like other "progressive" taxes, it will be charged at a percentage, based on your ability to pay. Thus rich people will pay more and poor people will pay less. There will most likely be a group who pays nothing into this at all, like with income tax. Also, is it really a transfer to the wealthy? I know when you think of artists, you imagine the pop sensation of the day who has millions and millions of dollars, but there are still lots of "starving artists" out there.
You're making the issue too emotionally charged by using terms like "regressive wealth transfer from the poor to the wealthy", which a lot of people emotionally oppose. But it's not really like that.
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I would like to see more discussion on that actually. I understand that anonymity is sort of the thing that makes the internet great.
I'm not so sure that total anonymity is such a great thing. It allows too many cretins to make personal attacks on people, essentially convicting someone of a perceived crime, when none may have occurred. Certainly, those who have been the victims would agree.
Is having a static home address (123 Cherry Lane) preventing anonymity in the real world? Is that a valid comparison?
When you realize that your home can be seen by anyone via Google Earth or similar service, it does call into question how private is your life. Of course, the view is not real time, but it is a snapshot and who knows what was happening that day? I think a closer comparison might be your landline telephone. It's not completely anonymous, can be traced to an physical address in most cases and there are laws that disallow the use of the phone for certain things such as uttering threats or causing a fraud to be perpetrated.
I am in no way condoning the actions of the RIAA, but until the failed business model they were assigned to protect is gone, they have the right to stop the unfettered sharing of copyrighted materials. Just like a trace that can be put on a landline phone, and the identity of the phone subscriber found, the RIAA has an obligation to its client to find out who is causing the client to lose revenue and changing one's MAC or IP address may seem like a cool way to beat it, but the law may not be on your side at this time.
Having said all of that, one has to ask how much longer the recording industry will continue this folly.
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