Boston University Student Challenges RIAA

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.'"

Re:*Ding*

[dotHectate]

I don't distinctly remember which one it was, but I remember reading it.

Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).

Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.*

Re:A few questions...

[pak9rabid]

If the RIAA had their way, this would be illegal. In fact, if the RIAA really had their way, you'd be paying each time you listened to your CD...

Re:his argument seems flawed

[Smidge204]

I must apologize, I had modded to +1 Interesting but after reading the PDF itself I think I'll reply to your comment instead.

What he is arguing is, at least as I see it: "Just because I left it in a public place does not mean anyone actually copied it. You have not claimed anyone but your agent has copied it, you have not claimed that I invited anyone to copy it, you have not claimed that I was aware anyone has copied it, nor that I as even aware they they could be copied." (Emphasis mine, the original word was "alleged")

...but they filed for a subpoena anyway. In short, it seems the RIAA hasn't even accused anyone of wrongdoing before asking for their personal information. All they saw was "Hey, this kid has music files that I can download" and went at him. THAT is the basis upon which the subpoena is being challanged.

A possibly poor analogy: I leave a CD on a table in a public place (a public park, say), for whatever reason. An RIAA agent comes by, sees the CD, and noticed he can pick it up. They then subpoena the town/city for all records of who was in the park that day, sitting at that particular table, because someone was "distributing" music illegally.

The kicker is, he cites supporting law verbage and other court cases where this situation was determined to not be copyright infringement.

IANAL though. Grain of salt for ya...
=Smidge=

Re:his argument seems flawed

[Red Flayer]

That's not wholly correct, however. Libraries can indeed be held liable for patrons' copying of copyrighted works. This is called vicarious infringement, and can only occur if the library does not post a notice near reproduction equipment about copyright law applying to patrons' use of the equipment -- libraries get a special exception to Section 18.

Note that since the defendant is not a library, this exception does not apply to him.

Easy fix, dude.

[porcupine8]

Click on "Preferences" in the menubar just below the /. logo. Then click on "Homepage" on the next menubar. Scroll down to "Customize Stories on the Homepage" and change the radio button next to "Your Rights Online" (last option in the list) to the big red no sign.

Re:*Ding*

[Alter_Fritz]

faster then NYCL ;-)
texas it was
In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004)
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/2004111 7_austin_severance_order.pdf [eff.org]

Re:A few questions...

[regular_gonzalez]

I think it would be legal *if* any given cd's tracks were in use by a single person at any one time -- since the law as it currently stands treats music similarly to software (i.e., you purchase a license to use it), any part of cd #1 could only be in use by a single person at a time. The difficulty, of course, comes in proving that you followed this obligation or, conversely, for the RIAA to prove you violated it. IANAL, etc.

Re:*Ding*

[NewYorkCountryLawyer]

I don't distinctly remember which one it was, but I remember reading it. Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money). Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA. *Money that we pay in our taxes.*

You are right, dotHectate. There have been a number of such holdings but the leading one is Fonovisa v. Does 1-41 [blogspot.com]

Re:A few questions...

[cpt kangarooski]

That brings up an interesting question. When you, I, or anyone purchases music, the purchaser becomes the licensee of said content, right?

No, at least not for most forms of music purchase, e.g. vinyl, tape, CD. Authorized downloads likely involve some manner of license to permit the downloading itself, but needn't necessarily cover anything beyond that.

Generally speaking, only the licensee is authorized to listen to the music.

Since there's no license, that's untrue. Besides which, licenses only cover, and are only available for, acts which are otherwise infringing. Since the mere right to listen is not part of copyright to begin with, merely listening can't infringe, and so can't be licensed and doesn't need to be.

What if a corporation/non-profit/non-singular entity or group purchases the music?

For corporate entities, the entity itself is the owner, rather than, say, the shareholders. Owning a share of Disney stock doesn't entitle you to make copies of Steamboat Willy.

What you're really asking is whether some sort of collective ownership of a copy could get around copyright laws. After all, where the laws don't restrict you, you don't need a clever tactic. I'd say that you'd have to look at precisely what you're doing and what the relevant law is. For example, I think that since the fourth factor of a fair use analysis would likely go against the use (since you're basically looking for a way to buy one copy as a substitute for other purchases), it would be difficult to avoid breaking the law if you went through with it.

The "making available" issue

[NewYorkCountryLawyer]

The best place to learn about the RIAA's "making available" theory, and the arguments pro and con, is the case file in Elektra v. Barker [blogspot.com]. Be sure to read the transcript, in which the Judge skeptically questions the RIAA lawyer about it.

Re:*Ding*

[UnknowingFool]

It was a federal court ruling by Judge Newcomer, in the Eastern District of Pennsylvania, but that is not what this motion is about. In this case, the RIAA is requesting that Boston University reveal the identities of 21 John Does. The defendants have responded saying that the RIAA cannot go on a fishing expedition for their identities without having proof that the 21 individuals have done something wrong.

Re:A better analogy...

[Deagol]

Not so far fetched.

Maybe these days university unix admins are more clueful, but when I was in college (1990-'96), all of my homedirs were set with 755 with a corresponding default umask. Maybe it was admin ignorance (Purdue? I doubt it), or maybe it the spirit of online collaboration back then. My buddies and I grabbed all sorts of stuff from others' homedirs: humor files (Purity Test, anyone?), various dot-files to learn scripting from, sound/bitmap files from the guys with X station accounts, etc. It was a very open environment back then.

A close analogy might be: on an account with similar permissions as outlined above, I FTP'ed a Postscript file of a research paper from a subscription site (like the ACM, for example) to my homedir, and then a bunch of others on the same server swiped a copy from my directory. Could the ACM reasonably sue me for copyright infringement?

It's been 17 years since my first university unix account, so things may be a very different these days.

Re:I say...

[CodeArtisan]

So... public libraries are illegal because anyone can check out a book and photocopy the contents of copy righted material? What about the music CDs of movies that you can access there? It's the same principle, in my opinion.

Not sure about the US, but in the UK I believe it is still the case that the library pays the publisher/author a royalty when a book is borrowed. It's called a public lending right.

Re:I say...

[BalanceOfJudgement]

Book publishers seem to be kicking themselves for not organizing into crime syndicates like the RIAA and MPAA, otherwise libraries WOULD be illegal.

Which I would call a crime against humanity. The right to learn should not abridged for the sake of some corporation's bottom line.

Re:I say...

[NewYorkCountryLawyer]

What you described is probably not distribution. Distribution isn't just a word. It's a term defined in 17 USC 106(3). What you described wouldn't fit the definition.

Record Companies Involved in Case

[NewYorkCountryLawyer]

The following is a list of the record company plaintiffs in Arista v. Does 1-21:
Arista Records LLC
Warner Bros Records Inc.
Atlantic Recording Corporation
Virgin Records America, Inc.
UMG Recordings, Inc.
BMG Music, Inc.
Capitol Records, Inc.
SONY BMG Music Entertainment
Motown Record Company, LLP
Maverick Recording Company
Elektra Entertainment Group Inc.
LaFace Records LLC
Interscope Records

Please pass it along so people will know which record companies not to patronize.