November 7, 2007

U of Oregon fights RIAA subpoenas

Posted by Richard Koman @ November 2, 2007

The fight against the RIAA seems to be lining up some serious firepower. The University of Oregon and the state’s attorney general are asking a federal judge to quash a subpoena issued by the recording industry seeking the names of 17 unidentified UO students, says Ars Technica.

The RIAA’s investigator, SafeNet, flagged IP addresses which resolved to accounts at the university. The U refused to deliver RIAA’s prelitigation letter, which presumably made the standard offer of “pay us four figures or we’ll turn you into Jammie Thomas.” As a result the lawsuit and ex parte subpoena for the names.

So what cialis free gives? Why are state institutions dragging their feet on the RIAA’s attempts to identify their prey? The school has several issues:

It can’t identify 16 of the 17 students without conducting interviews or doing forensic investigations, according to Dale Smith, director of network services. Nine of the students accessed a P2P net from the school’s wireless network. Smith testified that he can’t determine “whether the content was accessed by the individual assigned that user name or by someone else using the computer associated with the user name.”

More importantly, the AG’s office says the RIAA is engaging in unethical behavior towards the court. Despite the fact that deputy AG Randolph Geller told RIAA counsel Katheryn Coggon that the school would preserve all the relevant data, the RIAA said in its subpoena request that:

there was a “very real danger the ISP will not long preserve” the data it wanted.

Having just taken the California Bar’s professional responsibility exam I can tell you such a misrepresentation could result in disciplinary action, IMO.

Since it would take so much effort to ID the students, the RIAA is essentially shifting its own investigatory burden onto the state.

“In short, the subpoena requires the University to create discoverable material to assist Plaintiffs in their litigation rather than merely disclose existing documents,” argues the school, citing case law that indicates that non-parties “are not required to create documents that do not exist, simply for the purposes of discovery.”

Critically, says the Electronic Frontier Foundation, the school argues that the DMCA is the appropriate procedure for the RIAA to identify John Does.

The last argument, if accepted by the court, could radically change the nature of the RIAA’s 4-year litigation campaign against music fans. Currently, the recording industry’s strategy relies on pressuring universities into handing over student targets, either by having the university deliver “pre-litigation settlement letters” to students or, failing that, forcing universities to respond to subpoenas obtained after filing a “John Doe” lawsuit. If these avenues are blocked, the recording industry would have to undertake its own investigatory efforts to determine who to sue.

Whether the university wins or loses its effort, it’s nice to see it standing up on behalf of its students, rather than simply giving in to recording industry demands.