File swapper fights RIAA subpoena

An anonymous California computer user went to court Thursday to challenge the recording industry's file-trading subpoenas, charging that they are unconstitutional and violate her right to privacy.

The RIAA has used court orders to try to identify more than 1,000 computer users it alleges have been offering copyrighted songs on file-trading networks. It plans to use the information gained to file copyright lawsuits against the individuals.

The motion was filed by a pair of Sacramento, Calif., attorneys who said the RIAA had gone too far in its effort to protect its online copyrights.

"This is more invasive than someone having secret access to the library books you check out or the videos you rent," Glenn Peterson, one of the attorneys, said in a statement. "The recent efforts of the music industry to root out piracy have addressed a uniquely contemporary problem with Draconian methods--good old-fashioned intimidation combined with access to personal information that would make George Orwell blush."

The Jane Doe motion comes as the first individual legal response to the RIAA's effort to sue large numbers of file swappers. It follows similar legal challenges from several Internet service providers (ISPs) and colleges, including Pacific Bell Internet Services, an SBC Communications subsidiary.

A Massachusetts federal court has already ruled that some of the group's subpoenas, submitted to the Massachusetts Institute of Technology and Boston College, had not followed the correct legal process and were therefore invalid. That court left open the possibility that the RIAA could simply refile those subpoenas properly, however.

According to documents filed with the court, Jane Doe used the Kazaa file-swapping software as a music player largely to listen to songs she had ripped from her own CDs and to music that came pre-loaded on her family computer. She also "participated" in the Kazaa file-swapping community but tried to prevent other people from accessing files on her computer, the documents state.

On July 9, the RIAA sent her ISP, Verizon Communications, a subpoena seeking her name, address, phone number and e-mail address. Verizon contacted the anonymous subscriber on July 15, telling her that the group was targeting her. After consulting with attorneys, she asked Verizon to delay providing her information, because she would fight the request.

The action filed Thursday is still a preliminary step before settling down to fight on constitutional or other grounds. Because the RIAA document was seeking information from Verizon, not directly from her, she must first petition the court for the right to challenge the subpoena herself.

In their briefs, her attorneys argued that the RIAA's unconventional subpoena process has violated her rights to due process, privacy and anonymous association, along with her contract with Verizon.

For its part, the RIAA said that Jane Doe's motion to intervene matters little, because a federal court has already upheld the validity of the subpoena process.

"The courts have already ruled that you're not anonymous when you're publicly distributing music online," said Matt Oppenheim, senior vice president at the RIAA. "Her lawyers are trying to obtain a free pass to download or upload music online illegally. Their arguments have already been addressed by federal court and been rejected."

The Electronic Frontier Foundation, a digital civil liberties group, is also working with some individuals who say their screen names have been the subject of RIAA subpoenas, but it has not yet filed any challenges with the court. However, the group said in other kinds of cases such as libel and defamation, the law allows individuals to intervene in ISP subpoenas when their privacy is at stake.

"The most important issue is that if you are innocent, if the RIAA has screwed up, it is critical that individuals have the ability to challenge the subpoenas before their identifies are compromised," said Fred von Lohmann, an EFF attorney.

She was using Kazaa as a music player to listen to her legally-purchased CD's??? ROFLMAO!!!

I don't participate in music or file swapping, but I can't help but think the RIAA is making things worse for itself in the long run. Someday soon, the genie will be completely out of the bottle, and music files will be ubiquitous on the web. The RIAA needs to concentrate on how their members may profit in that environment.

Now here's a question for the legally inclined: Suppose that I am my own ISP; that I own the server; that I own the hardware that allows me access to the Web. In other words, I am beholden to no one but the law with respect to my activities online. Would it be illegal for me to store music files on my site in such a way that another could download without any specific action on my part? In the brick and mortar world, it is not illegal to keep your windows open and your valuables in clear view. Is that not the case on the web?

The RIAA needs to concentrate on how their members may profit in that environment.

Actually, I think the recording industry is likely dead in the long run anyway. Recording and distributing professional grade material used to be prohibitively expensive, therefore rare and easily controlled. It's now cheap, getting cheaper, and nearly universal. Especially the distribution side of things, which is where the profit has always been.

The real questions aren't about how these modern "buggy whip" makers are going to change to suit the times. They're about the future of the new "horseless carriage" industry.

I've often wondered that too. Or another way to look at it...is it illegal for me to download a song that I already own? Let's say my CD has a scratch on it and I want to replace that one song. Or if I have a huge library of music and I don't want to burn it to mp3 format myself, instead I want to leverage the work of other volunteers. RIAA really needs to sue those people who download music not share it out. And they should only be able to sue if they can prove you didn't buy a licensed copy of that music. So if you ever get sued for downloading all you would need to do is come in with the legal CD(s) with the songs they say you stole and then the case is dismissed.

Technically, it is the downloader who breaks the law since he is the one copying the copyrighted song; however, the RIAA's argument isn't that the swapper is liable simply because he is leaving the window open. The RIAA is arguing, and I think correctly, that the swapper is a co-conspirator in the downloader's copyright infringement because he is taking affirmative steps to make the songs available to others. He has, in effect, erected a sign saying "here they are, come get them." When a program like Kazaa has a folder called "My Shared Folder" and that folder is full of MP3s, it's hard to argue that the songs weren't being made available for download.

She was using Kazaa as a music player to listen to her legally-purchased CD's??? ROFLMAO!!!

There is absolutely nothing about that concept that is the least bit risible. "Jane Doe" may or may not be telling the truth about her own personal situation, but there are plenty of people that use Kazaa to play songs, not just download them.

So if you ever get sued for downloading all you would need to do is come in with the legal CD(s) with the songs they say you stole and then the case is dismissed.

But she doesn't seem to be ready to face the court just yet. This Jane Doe is fighting the subpoena... A delaying tactic. Right now, she's probably over at Best Buy filling her shopping cart with CD's to match her MP3 collection.

there are plenty of people that use Kazaa to play songs, not just download them

I find that hard to believe. Virtually every computer comes with Windows Media Player. Winamp is free for download. Both are rich with features and free. In comparison, Kazaa is crap as a player. I can't imagine why anyone would download Kazaa to use it as a player.

I've often wondered that too. Or another way to look at it...is it illegal for me to download a song that I already own?

No, it is not. Once you buy a song in any format - CD, cassette, 8-track, vinyl, reel-to-reel, Edison cylinder, you name it - you aren't really buying the physical object as much as you are purchasing the right to possess that song as a piece of intellectual property. Your purchase gives you a perpetual right to continue to own that song for the rest of your life. The law and court precedent is very clear on this, and has been since long before MP3s were invented: Once you've legally purchased a song, you have a permanent right to make copies of it for your own personal use.

This is the main reason the RIAA is only going after file swappers who are offering thousands upon thousands of individual songs from a single server. They claim they just want to bust "the serious violators," but we all know they'd love to instill terror and fear in every teenager in the country by nailing a few kids that were only offering five or ten songs. However, if they started going after such people, all such a defendant would have to do is walk into the courtroom with physical, record-company-issued copies of the songs they were caught sharing, and say "I didn't know I had file uploading turned on; I only intended to download copies of songs I already owned." And unless the RIAA lawyer goons could prove the records were bought after the lawsuit was filed (good luck), that would pretty much be the end of the suit. At worst, the "offender" would probably be hit with a token $100 fine or so and told not to do it again. More likely, they'd get off scott-free.

Because it's already running. Most people aren't thinking about feature sets ("Oh gee, I couldn't possibly listen to ELO without my favorite Winamp visual plugins and equalizer settings! It just wouldn't be the same!"); they just want the song to play. I'm on a Mac, and if I happen to already have some other program open that plays MP3s, I'll tend to go ahead and use that program instead of launching iTunes if I just want some quick background music.

Hell, a lot of times I'll just open another window in my web browser, point it to the MP3 file and let the song play that way.

Under the RIAA's theory of how the law should work, you really never own a copy of a work, and the seller can set arbitrary conditions on its use. They can point to a lot of verbiage in bad laws and say "we bought these laws fair and square, and we can call you a criminal now."

However, if you start with the patent and copyright clause of the Constitution, it is not possible to square the current law with original intent. Intellectual property protection has completely different goals than real property protection, as in the Vth.

In a historical analysis the recording indusrty is also on shakey ground. Recordings killed a thriving live music industry, and the death of the recording industry is just another changing pattern in history. It has as good a business model as the bottled air industry.

I can't imagine why anyone would download Kazaa to use it as a player

As far as I'm concerned, If the media player plays the media I want to play, I don't care how many "better" ones are available. I don't need a fancy car with all of the latest gizmos like GPS and OnStar etc... just to drive 2 blocks down the street to the supermarket. My old truck will get the job done just as reliably.

IMHO, Kazaa is actually preferable to any version of Windows Media Player that I've used. I got sick of the constant "Unable to download the appropriate Codec" error messages when I want to watch the latest Star Wars Kid video or whatever humorous video I have downloaded. I never have problems watching them on the Kazaa player. Sure there are better music players out there than Kazaa, and many are free, but Kazaa is still much better than Windows Media Player.

And yes, I did download Kazaa with the attention of using it as a media player, right after a friend showed me how easy it was to organize all of your media, audio, video, software, documents, photos, etc... in the My Kazaa media library. I have used Kazaa offline for hours at a time.

"In other words, I am beholden to no one but the law with respect to my activities online. Would it be illegal for me to store music files on my site in such a way that another could download without any specific action on my part? In the brick and mortar world, it is not illegal to keep your windows open and your valuables in clear view. Is that not the case on the web?"

Actually, I think the law exempts ISPs from liability. Now, how they define ISPs, I do not know. But if you can meet the definition, it would appear you would be safe.

She also... tried to prevent other people from accessing files on her computer, the documents state.

So she's asking the court to believe that she was smart enough to download and configure Kazaa as a "media player", but at the same time she was too incompetent to keep others from reading her music library.

The ISP's are exempt, and evidently so are the people who designed the file-sharing programs. Both claim they have no control over what people DO with the products and services they offer, and the courts agreed. That really only leaves the basic user. Which is what we're seeing now. Soon though, someone will notice that file-sharers are also millions of voters. Put too big a scare on them, and the results can be profoundly counter-productive. I'm not sure how far the industry wants to go with this. Something has to be done though.

That said,I'm always amused by how file-sharers seem so shocked at the agressive tactics the industry is using. There is barely a discussion of the RIAA, even on FR, that doesn't include words like "pimps" or "thieves". If that's really what they belive,why are people so shocked when they act exactly like pimps and thieves when people get between them and their cash?

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