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U.of Oregon Says No to RIAA
Posted by
Zonk
on Fri Nov 02, 2007 09:56 AM
from the always-a-good-feeling-right dept.
from the always-a-good-feeling-right dept.
NewYorkCountryLawyer writes "The University of Oregon has filed a motion to quash the RIAA's subpoena for information on student identities in what is believed to be the first such motion made by a university with support from the state Attorney General. The motion (pdf) explains that it is impossible to identify the alleged infringers from the information the RIAA has presented: 'Five of the seventeen John Does accessed the content in question from double occupancy dorm rooms at the University. With regard to these Does, the University is able to identify only the room where the content was accessed and whether or not the computer used was a Macintosh or a PC ... The University cannot determine whether the content in question accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor.' The AG's motion further argues (pdf) that "Plaintiffs' subpoena is unduly burdensome and overbroad. It seeks information that the University does not readily possess. In order to attempt to comply with the subpoena, the University would be forced to undertake an investigation to create discovery for Plaintiffs — an obligation not imposed by Rule 45. As the University is unable to identify the alleged infringers with any accuracy, it cannot comply with its federal obligation to notify students potentially affected by the subpoena. One commentator has likened the AG's argument to saying, in effect, that the RIAA's evidence is 'rubbish'."
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RIAA College Litigations Getting A Bumpy Ride 270 comments
NewYorkCountryLawyer writes "The RIAA's juggernaut against colleges, started in February of this year, seems to be having a bumpier and bumpier ride. The normal game is to call for a subpoena, to get the name and address of the students or staff who might have used a certain IP address. The normal game seems to be getting disrupted here and there. A Virginia judge threw the RIAA's motion out the window, saying that it was not entitled to such discovery, in a case against students at the College of William & Mary. A New Mexico judge denied the application on the ground that there was no reason for it to be so secretive, in a case involving University of New Mexico students. He ultimately required the RIAA to serve a full set of all of the underlying papers, for each 'John Doe' named, and to give the students 40 days in which to review the papers with counsel, and make a motion to quash if they chose to do so. In a stunning development, the Attorney General of the State of Oregon made a motion to quash the RIAA's subpoena on behalf of the University of Oregon, on grounds which are fully applicable to every case the RIAA has brought to date: the lack of scientific validity to the RIAA's "identification" evidence. The motion is pending as of this writing. Students have themselves made motions to vacate the RIAA's ex parte orders and/or quash subpoenas in over half a dozen cases. Much combat remains, but the RIAA's campaign is no longer a hot knife cutting through butter on the nation's campuses."
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Oregon AG Seeks to Investigate RIAA Tactics 114 comments
NewYorkCountryLawyer writes "Turning the tables on the RIAA's attempt to subpoena information from the University of Oregon, that state's Attorney General has now filed additional papers to conduct immediate discovery into the RIAA's 'data mining' techniques. These techniques include the use of unlicensed investigators, the turning over of subpoenaed information to collection agencies, and the obtaining of personal information from computers. The AG pointed out (pdf) that 'Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits ... their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery.'"
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MIT Student Plans to Take on RIAA 169 comments
NewYorkCountryLawyer writes "MIT's online newspaper, The Tech, reports that a student named as a John Doe by the RIAA is planning to fight back against their questionable legal tactics. The anonymous student told The Tech that he is 'the victim of a fishing expedition by the RIAA,' and is 'disappointed that MIT isn't going to step up ... Other schools like Boston University and the University of Oregon have resisted RIAA subpoenas of student records more actively than MIT has, he said'. Maybe his attorneys will be able to get some assistance from some of the Harvard Law School students in Professor Nesson's 'Evidence' class, who have been assigned — as part of their coursework — the drafting of a motion to quash an RIAA subpoena."
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University of San Francisco Law Clinic Joins Fight Against RIAA 106 comments
NewYorkCountryLawyer writes "The RIAA's litigation campaign has met resistance from the academic community before, but now it's been taken to a whole new level: the defense of RIAA victims who are not part of the college community. First the University of Oregon lashed out on behalf of its students, then it was the University of Maine's Cumberland Legal Aid Clinic on behalf of its undergrads. Now, the University of San Francisco School of Law has taken the fight a giant step further. Its Intellectual Property Law Clinic's attorneys-in-training, working under the supervision of law professors, are going to bat against the RIAA by helping outside lawyers to defend their clients, pro bono. They reached out 3000 miles to get involved in Elektra v. Torres and Maverick v. Chowdhury, two cases going on in Brooklyn, NY, against non-college defendants. Two of the law students in the USF's legal program assisted in the research and preparation of briefs in these cases, opposing the RIAA's motion to dismiss the defendants' counterclaims. Thousands of honor students throughout United States law schools, most of them digital natives who actually understand the legal fallacies and technological missteps the RIAA is taking, and who can't wait to expose them, make a pretty good resource for the poor and middle class people trying to defend these cases."
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News: Marshall University Challenges RIAA 117 comments
NewYorkCountryLawyer writes "Marshall University, in Huntington, West Virginia, has become just the second US college or university to show the moxie to stand up for its students instead of instantly caving in to RIAA extortion. In February, Marshall, represented by the Attorney General of the State of West Virginia, made a motion to quash the RIAA's subpoena for student identities, pointing out in exquisite detail in its long-time IT guy's affidavit (PDF) the impossibility of identifying copyright 'infringers' based on the RIAA's meager evidence. Unfortunately, the Magistrate — under the mistaken impression that the RIAA isn't going to sue the identified students, but merely wants to talk to them — recommended that the subpoena be okayed by the District Judge (PDF). It is not yet known whether Marshall will be filing objections. The first US college or university known to have attacked the RIAA's subpoena was the University of Oregon, which — also represented by its state's Attorney General — made a motion to quash last November, and even questioned the legality of the RIAA's methods. The Oregon motion is still pending."
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If this works... (Score:5, Interesting)
Re:If this works... (Score:5, Interesting)
PS.. GO DUCKS!
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Rule 45? (Score:5, Funny)
Re:Rule 45? (Score:4, Informative)
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Re:Rule 45? (Score:5, Funny)
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RIAA is rubbish. Question here for the law types. (Score:4, Interesting)
I am glad that the U. of Oregon stood up to these guys but it seems that the idea of a warrant or getting this information as being "unduly burdensome" seems pretty broad.
Is there a solid definition in these types of cases for what is really unduly burdensome?
How's their safe harbor doing? (Score:4, Insightful)
If I were an RIAA shark, I'd smell blood in the water.
Re:How's their safe harbor doing? (Score:5, Informative)
Well, yes. But the question is, whose blood?
As I said elsewhere, the U.O. President is a former dean of the U.O. Law School, and a former Attorney General of the State of Oregon. His university bio says he argued seven cases before the US Supreme Court as state AG and won six, and goes on to say that's more cases and a better record than any other contemporary State A.G. Its almost impossible to imagine that the University took this step without consulting him, and it's equally difficult to imagine he's misjudged the strength of their case or that he's afraid to take it all the way to the US Supreme Court.
I think the RIAA's sharks have just bitten a much bigger shark. If they aren't looking for a way to swim away quietly, they're in for a hell of a fight.
Parent
this is not how you defeat the riaa (Score:4, Insightful)
once there was a time when we were nothing but small mammals, and the world was ruled by terrible lizards. in the realm of intellectual property, this is that time. the internet, of course, obliterates the old economic models of distribution. the old economic models are the riaa's sustenance. so you defeat the riaa by waiting for it's food source to dry up
in the meantime, do what little mammals do best: be nocturnal, be quick, be small, be quiet. mask yourself, use proxies, do all manner of obfuscation and security through obscurity. the internet has no legal jurisdiction. don't fight them head on. just hide
there will be of course casualties, even a dying lizard can swing it's tail mightily. but in the end, it will be dead, and we shall inherit the earth. patience my friends. you cannot defeat the terrible lizard head on. just wait for it to die of starvation
it's economic model is history. the only one who doesn't know it is the riaa. there is no reasoning with the terrible beast, it's behaviors are not, and never have been, and never will be rational. you do not reason with a legal attack dog
wait, and the riaa will die. stop trying to reason with the unreasonable
suing soccer moms and grandmothers for thousands of dollars is not the actions of a rational entity. it is the mark of a last desperate stand, and the end is in sight
Re:this is not how you defeat the riaa (Score:5, Insightful)
1. You can't "wait them out" if you're the one that's being sued (or, as in this case, the university that's being put in a position in which it's being forced to violate the law)
2. If you think this motion doesn't have enormous impact, you're wrong.
3. The Capitol v. Thomas case is far from over.
Parent
well i would be foolish to debate you on legal pts (Score:5, Insightful)
for example, in a world where no artist signs with any music label, because they can get more money putting their own shingle on the internet, then the rights of labels that don't exist economically anymore don't have any meaning
it will take time to arrive at this new world, so perhaps we have to wait a lot longer than i might wish
to put it another way: there is a great legal framework in place concerning the rights of player piano music roll manufacturers
but in world where there are no player pianos, except in museums, then what does that legal framework mean?
likewise, i am not going to counter your legal arguments, your legal arguments are 100% correct
but i am going to say that over time, the entire legal realm the arguments you are making exist in will become defunct
it will take awhile, but you have an entire generation of young people who know what i am talking about. when such children are in their 40s and 50s, and are running whatever dried up remains of bertelsmann, coumbia records, etc. still exists, then what will any of this sound and fury really mean anymore?
Parent
Re:i want to attenuate what said in my previous po (Score:5, Insightful)
I'm a simple man.
I see some bad guys picking on some defenseless people, I jump in and try to help. Whether I will ultimately win or lose is a matter of indifference to me, because I have no control over the ultimate outcome. What I have control of is that I am fighting on the right side.
All I know about the motion the Oregon State Attorney General made on behalf of the University of Oregon is this:
-it is legally right
-it is morally right
-it's the first time a university or an AG has stepped into this business since it began in February
-the RIAA lawyers can make no intelligible response to it, since it is based on facts which the RIAA's own witnesses have already admitted under oath, and
-it's a terrible blow to the RIAA, once which they never anticipated.
So I'm smiling. And you should be too.
Parent
IP Trace subpoena (Score:5, Insightful)
A subpoena for an IP trace ("tell me who owned this internet access account on this date") is not normally a burden. If the subpoena instead requested the school "identify who was using this computer at this time", the school's response fits. The subpoena requires the school investigate, not just disgorge a few records.
Maybe all the students in the dorm could each claim they were the guilty party? ("I'm Sparticus!")
Recycle used CDs, save the planet (Score:5, Insightful)
Back in the day, we used to tape tapes and albums with absolutely no consequences. And we still bought new tapes and albums anyway. Today, we are assumed to be criminals for doing the same thing, only now in digital format. What is a person to do?
I'll think I will stick to used CD stores for now. Reduce, reuse, recycle.
Re:Recycle used CDs, save the planet (Score:5, Interesting)
can't get much more blatant than THAT, can you?
if it was ok then - and the sony/betamax case already established our right to make personal copies of 'media' - what's changed?
what's changed is that media companies see the signaling of the end for their business model. they see they have 5-10 yrs left, if even that. they are trying to milk the system for all its worth, ONE final time.
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Costs of enforcement (Score:5, Insightful)
I have been expecting the pendulum to swing the other way to either strike down these things due to the financial burden on the enforcement/ judicial/ corrections or to start taxing (rightly so) all those poor artists of which they have been protecting their rights.
Re:Costs of enforcement (Score:5, Insightful)
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GO DUCKS! (Score:4, Interesting)
Re:GO DUCKS! (Score:5, Informative)
When they say "this subpoena would require us to conduct an investigation" they are in effect saying "the RIAA hasn't conducted an appropriate investigation".
In fact, I'll go one step further: when they point out to the Court that the RIAA's evidence doesn't point to a copyright infringer,
-they are saying something that is fully applicable to all of the RIAA's lawsuits, both those against college students and those against the general populace,
-they are only saying what the RIAA has admitted under oath at the Capitol v. Thomas trial and in the deposition of Dr. Jacobson in UMG v. Lindor, and
-they are in effect sticking up for ALL of us.
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Re:Unfortunately, this is a valid subpoena (Score:4, Insightful)
Even the summary clearly indicates that the only thing the University can state with any accuracy is the room that was used, and whether the computer was a PC or a MAC.
This in no-way limits the pool of potential "defendants" to two, (which was also stated in the summary), it simply says that it could have been on-or-the-other of the two room-mates, or any guest they may have ever had, or anyone else who may have had access to the room (i.e. janitorial staff, friends, friends' friends, party guests, etc.).
The University seems to be essentially saying that the scope of the investigation that they would have to undertake in order to comply with the subpoena exceeds the burden the litigant is (or should be?) permitted to impose on them.
-AC
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Re:Unfortunately, this is a valid subpoena (Score:5, Insightful)
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Re:Unfortunately, this is a valid subpoena (Score:5, Informative)
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Re:Unfortunately, this is a valid subpoena (Score:5, Informative)
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Re:The beginning of the end? (Score:5, Insightful)
The year the old "pirate" Napster was being sued, CD sales (IIRC) were at their peak and have been dwindling since. The RIAA boycott (that you have never even once heard about in the mainstream media - hmmm....) must have had some slight effect on the industry.
Their first mistake was to think CD burning technology wouldn't, like all computer technology before it, be affordable for the serfs.
Their second mistake was to try to kill their competetion, the indies, by killing P2P.
Their third mistake was seeing MP3s as "product" rather than "advertising". They have always been known as "record companies", and they sold records. Now they're trying to sell music, and music is a non-tangible item. Note that the indies actually do this, giving away MP3s and selling CDs at their shows.
There were other mistakes - overpricing their wares (an indie CD is usually $5-$10), only having one good song on the CD (my generatiuon was damned lucky, have you ever heard a Led Zepplin song that sucked? There aren't any!), suing their paying customers (DUH!!!!!!) etc.
All their woes are self-inflicted. Now by "suicide" I'm assuming that you'll agree that if a mosquito lands on your foot and you try to kill the mosquito by firing five shots from a sixteen guage shotgun at it and you bleed to death, it's suicide.
-mcgrew [mcgrew.info]
Parent
Re:Hopefully More Push-back Follows. (Score:5, Informative)
RICO is so often brought up in these discussions that I finally went looking to see what it would take to get a RICO indictment and eventual conviction. I'm not so sure that it applies.
Note: I got my RICO information from Wikipedia [wikipedia.org], so take it for what it's worth.
First off, RICO requires that the individual or groups commit two of 35 different crimes. Extortion is in the list, but not many of the other crimes could apply to the RIAA no matter how far we stretch them. I think even extortion is a bit of a stretch. The ones that are even worth considering are:
I think we can ignore things like murder-for-hire, slavery, etc.
There's a fine line between extortion and blackmail. In both cases, there's a threat for gain. "Pay up or else!" In extortion, the threat is generally something illegal; for blackmail, the threat is normally something that would be legal, if it weren't being done as part of the threat for gain. Certainly, the RIAA is well within the bounds of legal behavior to bring lawsuits, and the courts are very reluctant to limit access to the courts under any circumstances.
To show extortion, one would need to demonstrate that bringing the suits is, itself, improper. That's not impossible, particularly if we can prove that the RIAA threatened litigation that it knew it couldn't win, but there are other rules for dealing with threats of frivolous lawsuits. My knowledge of that end of the law is pretty shaky — does anybody know what those rules are? Does anyone know if one can use them to demonstrate that the legal threat was, in fact, extortion?
For blackmail, one merely needs to demonstrate that the threat was used for gain. Unfortunately, once again, the courts like to encourage parties to settle. Settlement negotiations are almost impossible to characterize as blackmail.
RICO was written with obstruction of justice in mind. The idea was that organized crime would threaten witnesses, suborn testimony, etc. Some of the things that I've heard in a few RIAA cases do push this line, but I don't think they cross it. There's a big difference between trying to subpoena a minor and depose her outside the presence of her guardian, versus saying "If you testify, I'll kill your pets, your kids, and your grandparents, in alphabetical order."
Fraud only seems to apply if the letters they send out contain fraudulent offers. I'm not sure how this could apply, but it's worth examination.
Racketeering refers to a completely illegal business model - e.g., a "Protection Racket," where you pay for "insurance" against bad things happening to your business — where the bad things are the insurer actively trashing your business. If extortion applies to a large proportion of lawsuits (enough to show a clear, deliberate pattern), then racketeering probably applies as well. However, I don't think extortion could be demonstrated.
Ultimately, much as I'd personally love to see RICO applied, I don't think it does. They key point is that the courts don't like to limit access to the courts, even by a chilling effect. Everybody has a right to their day in court. That, in turn, leads to the abuses we see where a big corporation can afford more and bigger lawyers than small mom-and-pop businesses, who settle cases that they could win because they'd lose more money in legal fees than the settlement.
What we need is a revamp of this part of the legal system. Frankly, I don't see how that can be done without free, government-appointed counsel in every case, which is even less workable than the current system.
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