Recording industry's subpoenas met with legal challenges
By Mike Snider, USA TODAY
As the record industry's campaign against home music swappers expands, legal challenges are building as well.
The Recording Industry Association of America has filed more than 1,200 subpoenas since July, and court clerks are seeing more every day. The subpoenas seek identities of home users accused of copyright infringement.
Now, a Sacramento attorney plans to file a motion this week in U.S. District Court in Washington on behalf of one of them — the first legal action by an individual targeted in the RIAA's campaign.
The argument is a new one in the increasingly contentious battle over the blizzard of subpoenas being served to colleges and Internet service providers: Just because a user's PC has music files stored within a peer-to-peer file-sharing program doesn't mean the user is illegally distributing copyrighted material, says attorney Daniel Ballard. Distribution implies sending, rather than leaving something where it may be taken, he says.
"It is an assumption they (the RIAA) are making," says Ballard, who will file a "Jane Doe" case for a user whose personal information has been subpoenaed.
The RIAA wouldn't comment before the motion is filed but said it asked the court to force ISP Verizon to turn over the user's information, after which it would discuss any issues with the individual.
This brings "another dimension to the fight," says Fred von Lohmann, an attorney with the Electronic Frontier Foundation, which is leading the battle against the record industry's targeting of individuals. "Actual subscribers have a perspective that has so far been absent."
The RIAA says it intends to file hundreds of lawsuits against the biggest offenders, starting later this month or in early September. A federal judge in April ordered Verizon to supply identities of customers accused of sharing copyrighted files, a ruling that set off the flurry of subpoenas. Verizon is appealing the decision; a court date is set for Sept. 16.
Other recent developments:
• A federal judge ruled late last week that RIAA subpoenas issued in Washington, D.C., to the Massachusetts Institute of Technology and Boston College were invalid. Both schools argued that the subpoenas should have been issued in Massachusetts and that they did not have sufficient time to respond. Columbia University filed a similar motion last week.
• Earlier this week, the Net Coalition, a group representing dozens of ISPs, sent a letter to RIAA president Cary Sherman questioning the validity of its campaign. In addition to the cost that ISPs face in complying with the RIAA subpoena process, "we are concerned over the broad implication of turning over all this personal information," says executive director Kevin McGuiness.
• Two weeks ago, Pacific Bell sued the RIAA, differing with its interpretation of the Digital Millennium Copyright Act, the 1998 law that eases the subpoena process when used by copyright holders seeking to halt infringements.
On Friday, the RIAA filed a motion asking the court to enforce subpoenas sent to Pacific Bell and the parent corporation, SBC.
• The RIAA has sent copies of its subpoenas to the Senate Permanent Subcommittee on Investigations. Chairman Sen. Norm Cole- man, R-Minn., demanded information about "this barrage of RIAA subpoenas," saying he was "concerned about the potential for abuse" in the subpoena process.
Meanwhile, hundreds of people who have been notified by their Net providers that their names have been subpoenaed are anxiously wondering whether, or when, the RIAA will sue them.
Heather Gillette, 23, of Revere, Mass., has removed the 3,000 songs she had on her PC. Based on the RIAA's statements, Gillette figures the group could seek more than $2 million from her.
"It's unrealistic, but I definitely freaked out," she says. "The fact that they can go see what I've downloaded bothers me to begin with, but to actually go ahead with (a lawsuit), I really hope not."
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