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Saturday, December 1, 2007

Oregon Attorney General rebukes RIAA, files counter discovery motion

The Oregon Attorney General has filed a Reply Memorandum which very eloquently sums up the entire debacle of the RIAA—on behalf of the Recording Industry—filing subpoenas seeking universities to reveal the identities of students they allege to be involved in copyright infringement.

Previously this year, attempts by the RIAA to intimidate Harvard University were met with a fiery rejoinder from the Berkman Center for Internet and Society at Harvard Law School, which has seen the RIAA subsequently subpoena every other ivy league university in the US except Harvard.

Now the Oregon Attorney General has stepped in to support the motion by the University of Oregon to quash the RIAA's subpoena in its case Arista Records LLC v. Does 1-17, which requires the university to disclose the identities of students allegedly involved in file sharing activities.

The Memorandum of Response from the Attorney General is possibly one of the best pieces of legal narrative I have read and it certainly sums up the situation faced by a number of universities around the US. Here are the highlights:

  • The University of Oregon (University) currently finds itself on a battleground not of its own making. By challenging over-broad and burdensome subpoena from the RIAA (Plaintiff), the University has attempted to protect the fundamental privacy rights of its students, conserve limited public resources, and to provide pertinent information for the Court's consideration regarding whether Plaintiffs' discovery efforts are appropriate. Sadly, the University's efforts thus far have been met by accusations that the University is obstructing the process and even conspiring with law-breakers. Those accusations are not warranted. Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies. However, that pursuit must be tempered by basic notions of privacy and due process. The record in this case suggests that the larger issue may not be whether students are sharing copyrighted music, but whether Plaintiffs' investigative and litigation strategies are appropriate or capable of supporting their conclusory allegations.

  • Before Plaintiffs may properly obtain the identities of the Doe Defendants through a compulsory discovery process, Plaintiff must support those allegations with evidence sufficient to establish a prima facie claim.

  • Since expedited discovery is a discretionary process, it follows that the Court may also consider information relating to Plaintiffs' conduct. If the record shows more intent to harass than anything else, expedited discovery is simply not appropriate. The same is true if the discovery is fairly characterized as a fishing expedition, causing needless expense and burden to all concerned. Such discovery runs counter to the important but often neglected Rule I of the Federal Rules of Civil Procedure, which requires that all rules "shall be construed and administered to secure the just, speedy and inexpensive determination of every action.

  • The Plaintiffs only affiant, Mr. Carlos Linares, has no first hand information about the alleged misconduct and played no role in its investigation.

  • The "data mining" techniques used to investigate computer users really only prove that computer files associated with a particular IP address contain copyrighted songs and also contain software used to exchange data files, including but not limited to music files. The data mining does not indicate how the music files were obtained in the first instance (legally or illegally) or even whether the files were actually shared thereafter. It follows that Plaintiffs have shown only a potential for illegal file sharing; they have not shown that any infringing activity took place. The testimony also shows that the when the file sharing software is enabled on an individual's computer, with or without his knowledge, it allows copyright violators elsewhere to access his music files and copy them without his participation or awareness.

  • Other red flags are apparent. For instance, Plaintiffs' investigation practices probably provide the capability to "mine" private, confidential information unrelated to copyright infringement. Plaintiffs' expert, Mr. Jacobson, testified under oath that file-sharing programs Plaintiffs are accessing sometimes upload personal and confidential information of the user and make that information available for sharing unbeknownst to the user. It only follows that Plaintiffs' investigator, MediaSentry, has access to such information when it is stored in a file-sharing program that it is "mining." In conferral, Plaintiffs refused to answer interrogatories that would shed light on this obvious and legitimate concern.

  • Plaintiffs' third-party investigator, MediaSentry, is investigating in Oregon without a license. By investigating Oregonians without proper licensing, MediaSentry may be in violation of ORS 703.993(2), a misdemeanor crime.

  • The credibility of the Plaintiff in regards their investigation and
    their litigation tactics was highlighted in the case of Atlantic Recording Corp., et al. v. Tanya Andersen. Plaintiffs sued an Oregon woman for copyright infringement, based on the same theories and investigative techniques at issue herein. The Defendant actively contested the allegations and denied any unlawful activity. The Plaintiffs, and, rather than submit to discovery or oppose the motion for summary judgment, Plaintiffs abandoned their case. Tanya Andersen claims Plaintiffs' litigation strategy involves the use of collection firms, which apparently engage in debt collection activities in Oregon and across the country. Information in her Complaint suggests that Plaintiffs may use the judicial power of this and other courts to identify persons suspected of copyright infringement, and then, rather than pursue the litigation, use the collection firms to leverage payment of arbitrary sums of money, based on threats and evidence from the data mining.

  • Plaintiffs mislead the court by stating that the information they seek concerning the John Does is "directory information" and thus available under the Family Educational Rights and Privacy Act even in the absence of a subpoena. Plaintiffs seek the name, address and telephone number of students who were allegedly engaged in specific conduct at specific times. Clearly, when Plaintiffs seek the names of individuals with access to an IP address associated with a specific computer or a specific residence at a specific point in time, the information sought is personally identifiable information. Furthermore, the alleged directory information sought by Plaintiffs names, addresses and phone numbers-is clearly linked to non-directory information computer habits, an individual's physical presence at a specific location at a particular point in time-and thus cannot be released absent appropriate legal process.

  • And the coup de grâce... While the University is not a party to the case, Plaintiffs' subpoena affects the University's rights and obligations. Plaintiffs may be spying on students who use the University's computer system and may be accessing much more than IP addresses. The University seeks the Court's permission to serve the attached interrogatories on Plaintiffs and conduct telephonic depositions of the individuals who investigated the seventeen John Does named in this lawsuit to determine 1) what their investigative practices are and 2) whether they have any additional information with which to identify the John Does. Plaintiffs have refused to provide the University with answers to these basic questions. If Plaintiffs have nothing to hide, they should be able to agree to these reasonable requests. Since Plaintiffs have declined to share any information about what they know and how they know it, the University seeks the assistance of the Court to obtain it.

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