Lawyers representing a California woman who was targeted by a Recording Industry Association of America subpoena have filed a motion in U.S. federal court challenging the subpoena as an unconstitutional invasion of privacy.
The woman, whose motion was filed under the name Jane Doe, is an Internet subscriber of Verizon, which is one of two major Internet service providers (ISPs) that have filed suit in resistance of the RIAA subpoenas. Verizon is currently appealing a court ruling that upheld the legality of the RIAA subpoenas.
The recording industry group said its use of more than 1,000 subpoenas sent to ISPs was aimed at file-sharing network users who were “egregious” violators of copyright law. However, the Jane Doe motion — the first challenge from an individual ISP customer — reportedly indicates that the woman used Kazaa file-sharing software mostly to listen to music she owned and that she tried to prevent sharing files from her hard drive.
The RIAA, which detailed its strategy and use of software to find copyright infringers in a letter this week, said its 1,075 subpoenas were intended to identify users involved in “substantial amounts” of illegal activity.
The recording industry group would not define the number of songs or amount of file-sharing activity that it considers substantial, but lawyers for the California woman claim her use of Kazaa was limited mostly to playback of songs from her own CD collection.
Some file-sharing applications and networks promote sharing of files by default, but the woman’s lawyers argued that while she participated in the Kazaa network, she attempted to block access to files on her computer.
The motion marks a growing resistance among Internet users and ISPs to the RIAA’s effort to track down users of peer-to-peer (P2P) file-sharing networks by issuing subpoenas to providers.
While Verizon is appealing its court loss that upheld the RIAA’s subpoenas, telecom giant SBC is also suing the RIAA through its Pacific Bell Internet Services division, claiming the subpoenas endanger the privacy of users.
A group of ISPs known as NetCoalition also has questioned the subpoena strategy, voicing concerns over a lack of independent review of the subpoenas, the cost of dealing with them, and subscriber privacy.
Use Was Minimal
Glenn Peterson, an attorney with McDonough, Holland and Allen — the firm that filed the motion on Jane Doe’s behalf — told TechNewsWorld that the woman was a Kazaa user, but that she used the application to play music that was lawfully on her computer.
“The RIAA statement that they’re only going after egregious infringers doesn’t really square with the subpoena at issue here,” Peterson said.
“The fact that someone had content in a shared music folder is not enough to label them an egregious user and is not enough to injure their privacy without due process,” he added.
Same Old Argument
In response to the motion by the California woman, the RIAA referred to its Verizon case victory and the judge’s ruling that if a subscriber opens a computer to permit others to download materials via a P2P network, that action makes that subscriber guilty of piracy.
“Nobody has a right to steal music,” RIAA senior vice president of business and legal affairs Matt Oppenheim said in a statement. “This individual’s lawyers are trying to obtain from the court a free pass to download or upload music online illegally.”
Oppenheim said the woman’s arguments already have been rejected in the Verizon case, where a federal judge ruled that users are not anonymous when they publicly distribute music online.
In the middle of the subpoena struggle are the ISPs, which must turn over the identities of users according to the Digital Millennium Copyright Act. The ISPs argue they are not equipped to handle the RIAA’s legal onslaught.
“Some of our smaller ISPs are getting these [subpoenas], and they’re just not equipped for it,” NetCoalition spokesperson Ginny Sciabbarrasi told TechNewsWorld. “It requires huge resources not only financially, but also in people.”
Sciabbarrasi added that although the DMCA prevents ISP liability, much hinges on the validity of the subpoena. “If there’s anything wrong with it, the ISP is liable,” she said. “That’s a horrible place to be.”
Ineffective In the End
Yankee Group senior analyst Mike Goodman, referring to the 57 million people who downloaded music files last year, told TechNewsWorld that despite improvements to legitimate file-sharing networks, the recording industry still needs to change its fundamental business model to win over music fans.
Goodman said that because legal, for-pay file-trading services still are not giving consumers what they want — multiple recordings, portability to different devices and ownership of music — free file-sharing networks are continuing to thrive.
“In the end, [the subpoena strategy] is going to be ineffective,” Goodman said. “It doesn’t seem to have had much of an effect in slowing down the sharing.”