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RIAA's Boston University Subpoena Quashed

Posted by Zonk on Sat Apr 05, 2008 05:27 PM
from the judges-should-be-issues-banhammers dept.
The Courts Education Music
NewYorkCountryLawyer writes "As first reported by p2pnet, the motion to quash the RIAA's subpoena seeking identities of Boston University students has been granted, at least for the moment. In a 52-page opinion (pdf) the Judge concluded that she could not decide whether or not to quash until she had seen the college's 'Terms of Service Agreement' for internet service. It was only then she could decide what 'expectation of privacy' the students had. She quashed the subpoena calling for the student identities, and told them they could go ahead with a subpoena just for the terms of service agreement. Interestingly the decision was issued on the very same day as the judge in Elektra v. Barker came to some of the same conclusions."

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[+] Your Rights Online: Boston University Student Challenges RIAA 381 comments
NewYorkCountryLawyer writes "A Boston University student identified only as one of the 21 'John Does' in Arista v. Does 1-21 has challenged the RIAA's alleged right to get his or her identity from the school, bringing a motion to vacate the ex parte discovery order obtained by the RIAA, and to quash the subpoena served on the university. John Doe's court papers (PDF) argue, among other things, that the RIAA's papers are 'based on a flawed theory that having copyrighted music files on an individual's computer or on an assigned folder on Boston University's server is a "distribution" of such copyrighted music files, where such folder is merely accessible by others.'"
[+] Your Rights Online: Judge Rejects RIAA 'Making Available' Theory 353 comments
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
[+] RIAA "Making Available" Theory Rejected 168 comments
NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."
Firehose:RIAA's Boston U. subpoena quashed...for now by NewYorkCountryLawyer (912032)
[+] Mediasentry Violates Cease & Desist Order 216 comments
NewYorkCountryLawyer writes "On January 2, 2008, the Massachusetts State Police ordered MediaSentry, the RIAA's investigator, to cease and desist from conducting investigations in Massachusetts without a license. Based on what appears to be irrefutable proof that MediaSentry has been violating that order, the Boston University students who tentatively won, in London-Sire v. Doe 1, an order tentatively quashing the subpoena for their identities, have brought a new motion to vacate the RIAA's court papers altogether, on the ground that the RIAA's 'evidence' was procured by criminal behavior."
[+] Your Rights Online: RIAA Lawyer Jumps Ship 173 comments
NewYorkCountryLawyer writes "The RIAA's top litigation lawyer, who has been personally leading the RIAA's litigation campaign for the past several years, Richard Gabriel, will be leaving his law practice after getting a job as a state court judge for a 2-year term in Colorado. What this will mean to the RIAA's litigation machine is anyone's guess. Mr. Gabriel has personally argued all of the RIAA's main cases, including Elektra v. Barker, Atlantic v. Howell, Atlantic v. Brennan, Capitol v. Foster, Atlantic v. Andersen, UMG v. Lindor, and London-Sire v. Doe 1, and personally tried the Capitol v. Thomas case, the only RIAA case that has ever gone to trial. He was working directly under the supervision of the RIAA's mysterious 'representative' Matthew Oppenheim."
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RIAA's Boston University Subpoena Quashed 25 Comments More | Login /

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  • Good news, but that's still three too many uses of "quash."
  • To have that quashed. It'll turn all purple and stuff, and it'll hurt to pee...

    Oh? What's that? SubPEONA?

    Nevermind.

  • Won't hold forever (Score:5, Insightful)

    by Todd Knarr (15451) on Saturday April 05, @05:44PM (#22975310) Homepage

    I'd note that I don't expect these roadblocks to the RIAA getting student's identities to hold forever. It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against. The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement. That's probably a significant hurdle, but if the RIAA clears it then the students will not be able to block discovery of their identities.

    • Re: (Score:2, Interesting)

      by Admiral Justin (628358)

      It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against


      Except that more and more of the claims are being shown to not be legit.

      Besides, there
    • it's not up to the legal system ethier, thats the double egded sword RIAA are playing with and they just got a little nick imho.
    • The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement.

      I have no problem with this. In fact, I'd love to see the RIAA try to do this,

    • Re:Won't hold forever (Score:5, Insightful)

      by TheRealMindChild (743925) on Saturday April 05, @06:50PM (#22975650) Homepage Journal
      It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against.

      That's just it! Prove to me you HAVE a legitimate claim, THEN you can have the name. Else, bringing up any bogus lawsuit would be easy means of finding anyone's identity.

    • Re:Won't hold forever (Score:5, Insightful)

      by evanbd (210358) on Saturday April 05, @06:52PM (#22975662)

      I'd note that I don't expect these roadblocks to the RIAA getting student's identities to hold forever. It simply isn't permissible in the US legal system to prevent a plaintiff with a legitimate claim from discovering the identity of the person they have that claim against. The best the students can hope for in the long run is to require the RIAA to prove that the IP address and client they have a record of did in fact commit copyright infringement. That's probably a significant hurdle, but if the RIAA clears it then the students will not be able to block discovery of their identities.

      So perhaps the courts should be requiring them to demonstrate the legitimateness of the claim first. Especially the highly-questionable joinder of unrelated cases solely for purposes of discovery, followed by dropping of the suit and re-filing individual suits.

      • Re:Won't hold forever (Score:4, Interesting)

        by TubeSteak (669689) on Saturday April 05, @08:57PM (#22976440) Journal
        Students are also a special breed type of legal entity, since the Family Educational Rights and Privacy Act (FERPA) gives them extra privacy protections that the average person would not have.

        I'm surprised the Judge is debating whether the school's TOS for internet use trumps FERPA.

        • Re:Won't hold forever (Score:4, Interesting)

          by CorSci81 (1007499) on Sunday April 06, @02:02AM (#22977916) Journal
          I had a question regarding the improper joinder. I noticed on pages 9 and 10 this judge has consolidated multiple John Doe cases on account of "similar, even virtually identical, issues of law and fact" for "administrative efficiency". Whereas other judges have frequently brought up this same issues of improper joinder. What's the difference (if any) in these circumstances? I fail to see why consolidation should be appropriate here where other judges have considered it improper.

          • Re: (Score:2, Interesting)

            by rohan972 (880586)
            Perhaps the appropriateness depends on the goal. If an organisation wants to consolidate multiple cases in order to abuse the legal system more efficiently, it is inappropriate. If a judge wants to consolidate cases in order to more efficiently smack down

          • Re:Won't hold forever (Score:4, Interesting)

            by NewYorkCountryLawyer (912032) * on Sunday April 06, @09:59PM (#22984364) Homepage Journal
            1. The joinder is flatly prohibited under the federal rules.

            2. Judge Gertner's automatic consolidation of each new RIAA case is, in my personal opinion, also contrary to law under these circumstances, and is certainly grossly unfair to the defendants.

  • in a few years, I hope this epic chapter in lawsuit history will be used as a benchmark for what NOT to do.

  • Here's the thing (Score:3, Insightful)

    by kilodelta (843627) on Saturday April 05, @07:16PM (#22975780)
    Just change one's MAC address and you get a new IP address. And NIC's made for the past 10 years or so have allowed you to muck with the MAC address.

    • Re:Here's the thing (Score:5, Informative)

      by corsec67 (627446) on Saturday April 05, @08:55PM (#22976430) Homepage Journal
      And at the school I went to (CU), once you signed up a MAC address as being valid, any device could use that MAC to authenticate against the wifi service.

      I actually used that to get my PSP online when it first came out, Wipeout was the only game that could get online, but the simple web browser (something like Links with graphics in terms of capability) couldn't figure out the login page that CU put up.
      So, I had a friend change the MAC address on his laptop to that of my PSP, I signed it up as being "mine", and then my PSP worked on the wifi.

      So, the the device I used to register the MAC address had absolutely nothing to do with the device that I was using most of the time that actually had that MAC address built in.

      A MAC address is about as identifying as a nametag.

  • terms of use policy (Score:5, Informative)

    by pikine (771084) on Saturday April 05, @08:29PM (#22976248) Journal
    Do they really need to subpoena it? It's right here [bu.edu].

    • Re: (Score:3, Informative)

      by Anonymous Coward
      They aren't subpoena-ing to find out what the TOU *is*, they've been granted the right to ask for the information, and ONLY the information that school is willing to give out, as provided by the TOU.

      So if the TOU says, we'll give first names, or birthdays,

    • Re: (Score:2, Informative)

      by Steve1952 (651150)
      It says that BU may inspect the files, but it doesn't say anything about sharing the data with third parties:

      "Boston University reserves the right, without notice, to limit or restrict any individual's use, and to inspect, copy, remove or otherwise alter

    • Maybe I shouldn't try to post to /. after drinking on a Saturday afternoon. It causes me to revert to "Some place up dar!" Obviously Boston Uni and MIT are much different institutions.

      Anyways, the documents I MEANT to find are no where to be found in a qui

    • Re:Getting Closer (Score:5, Interesting)

      by Dada Vinci (1222822) on Saturday April 05, @06:15PM (#22975462)
      The only court that can eliminate RIAA suits across the country is the Supreme Court. This case is in a trial court. The powers of a trial court are MUCH more limited.

      A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a different federal court and get a different outcome.

      The next stop for this case would be an apellate court. The federal Court of Appeals for the First Circuit is the appellate court that would hear the appeal. If the appellate court rules in favor of the students, then all of the trial courts in a limited geographic area (Maine, Mass, New Hampshire, Rhode Island) are bound. If the RIAA filed outside that area then a different court could come up with a different outcome.

      The next stop from the First Circuit would be the Supreme Court. The Supreme Court's interpretation of the laws is binding nationwide. But, the Supreme Court hears less than 1% of the cases that people appeal. The odds of this case setting a national precedent are VERY low.

      Of course, other judges can be pursuaded by the reasoning in this case, but there's nothing binding about it.

      • The only court that can eliminate RIAA suits across the country is the Supreme Court. This case is in a trial court. The powers of a trial court are MUCH more limited.

        A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a different federal court and get a different outcome.

        But precedent is really important where you want to bind other future litigants. When the litigant is the same you can get an order in one court that will bind them no matter where they operate. In this case the same entities are commencing the various lawsuits in the different jurisdictions. The court could enter, for example, an anti-suit injunction against the RIAA to prevent further similar lawsuits if they wanted, and if the RIAA filed the same suit in a different federal court they'd get slapped with contempt in the court issuing the anti-suit injunction.

        • Re: (Score:3, Interesting)

          by Dada Vinci (1222822)
          Anything you said might make sense if the students were actually suing the RIAA or filing an anti-SLAPP lawsuit. But the students are moving to quash a subpeona, not suing the RIAA for malicious prosecution. The fact that the judge has already called it

      • A trial-level court can only make decisions that are binding in the case that it is hearing. Right now the case is in the federal court for the District of Massachusetts. The RIAA could just as easily file a suit against different college students in a dif

      • Re: (Score:3, Interesting)

        by Foobar of Borg (690622)

        The federal Court of Appeals for the First Circuit is the appellate court that would hear the appeal. If the appellate court rules in favor of the students, then all of the trial courts in a limited geographic area (Maine, Mass, New Hampshire, Rhode Island

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