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F & F


Jane Doe, $150K/download, and Using the Color of Law: an interview with Glenn Peterson
posted by scubacuda on Tuesday August 26, @07:22PM
from the instead-of-brass-knuckles dept.
Civil Liberties Glenn Peterson, attorney at McDonough Holland & Allen, represents "Jane Doe," one of the first to fight the constitutionality of recent RIAA subpoenas. In this GrepLaw interview, Glenn gives his thoughts on recent RIAA strong arm tactics, Matt Openheim's assertion that Jane Doe's arguments have "already been addressed by a federal judge," and the danger of giving subpoena power to anyone pretending to have a copyright claim.

(To read this interview, click on the Read More link)

Update by RR: /. discussion here

The RIAA is demanding that ISPs and universities provide it with the names and addresses of users who distribute copyrighted music online so it can sue these users for copyright infringement. Boston College and MIT challenged the RIAA’s subpoenas on narrow technical grounds, arguing that the RIAA had filed its subpoenas in Washington, DC, instead of Massachusetts. By contrast, you’ve argued that the RIAA’s approach is unconstitutional and violates the privacy and due process rights of your client (“Jane Doe”). Tell us more.

Procedural challenges, by and large, are curable. In the case of Boston College and MIT, for example, I expect the RIAA will simply re-issue the subpoenas within the appropriate territorial limits. What we are trying to do with Jane Doe’s case is intended to achieve more lasting results. We feel strongly that the section 512(h) subpoena process should be invalidated. It needs to be re-written to protect the constitutional rights of the individual subscribers. No doubt, music piracy is a bad thing. Sometimes, it is appropriately characterized as a form of property theft. As a societal problem, though, it is neither worse nor more alarming than other wrongs against property. Certainly no more a societal concern than elder abuse, drunk driving, vandalism, violence, identity theft, investor fraud, and a host of other behaviors. However, the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals. It is astounding to me that the law bends over backward to safeguard the constitutional rights of accused criminals and then completely ignores the same rights of teenage kids sharing music in an environment they have every reason to believe is legal. It is important for me to stress that we do not condone music piracy or copyright infringement. What we want to do is clarify what qualifies as music piracy and further to ensure that the so-called accused pirates have the same minimal constitutional rights that we afford to those accused of doing much more serious and harmful things than sharing music. I note that the RIAA has spent big bucks on public awareness campaigns. I’d like to see some of that money spent on educating people what music piracy includes and what it doesn’t. Problem is, legal scholars, industry leaders, and courts of law are not yet in agreement on what is and isn’t infringement in the P2P environment. So, the current industry plan seems to be to scare everyone out of the P2P community. To some degree, I think it’s working and that is truly a shame.

What do you think about Matt Oppenheim’s assertion that your client’s arguments “have already been addressed by a federal judge -- and they have been rejected. Courts have already ruled that you are not anonymous when you publicly distribute music online”?

We’re making several constitutional arguments that have not been raised before. We are also making some arguments that have been raised, but not directly on behalf of the true interested parties--the subscribers. ISPs, such as Verizon, raised some constitutional arguments but they couldn’t put the right arrow in their bow because they weren’t representing a subscriber.

The other big issue that didn’t get enough, if any, attention is the abuse factor. Arguably the most dangerous consequence, the subpoena power can be put in the hands of anyone willing to pretend to have a copyright claim. Without a judge's review, these fraudulent requests are easily passed of as legitimate ones, passing under only the minimum, ministerial scrutiny of a court clerk with a rubber stamp. The potential abuser categories are limitless, and include everything from annoying marketers to swindlers, child abductors, blackmailers, and terrorists.

EFF attorney Fred Von Lohman has been quoted as saying, “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 identities are compromised.” Do you think members of the public should know the identity (i.e., screen name) of a user accused of illegal file sharing before a court has even made a decision about her or his guilt? (Interestingly, the EFF’s website require you to already know an IP and/or screen name before you can see if it is on the list of suspected file sharers.)

I agree that subscribers have to be given notice and an opportunity to object to the subpoena. I can see no reason whatsoever that they wouldn’t be given this minimal right. Especially since, once their identity is released, the harm is irreversible. You can’t put the toothpaste back in the tube.

There are interesting similarities between the RIAA’s campaign, Prohibition, the War on Drugs, and the “War on Terrorism.” Can you think of anything else in U.S. history that resembles the RIAA’s current scorched earth campaign? What types of fallout do you anticipate?

The industry’s current anti-piracy efforts are reminiscent of 1930s era mob tactics—intimidation and threats combined with the subtext: “we wouldn’t want anything bad to happen to you or your family,” and “we’ll be watching you.”

What makes the industry’s current campaign even more alarming than an involuntary meeting with a mob boss is that the industry has cloaked itself with the awesome power of our federal court in Washington D.C. The industry is exploiting federal laws, created by their considerable lobbying influence, and using “color of law” instead of brass knuckles.

What penalties do you think file swappers could expect to suffer? We’ve all heard numbers like $750 to $150,000 per violation. And if a bill proposed by Representatives John Conyers and Howard Berman is passed, the penalty could jump to as much as $250,000. What does this mean? Say someone has shared a gigabyte’s worth of music—about 200 songs; $750 times 200 equals $150,000, and $150,000 times 200 equals $30,000,000. What is actually reasonable? How should courts calculate actual damages in file sharing cases? And what constitutes a “violation”? This all sounds frighteningly close to Dr. Evil’s request for “one billion dollars” in Austin Powers.

I think that we need to re-think the damages provisions in the Copyright Act. We altered the law with the DMCA in order to catch the law up with technology and we need to do it again with respect to damages. I feel especially passionate about this with respect to the “intent” factor. The intent associated with printing 1,000 counterfeit “Harry Potter” books and that associated with kids sharing music with other kids is obviously different and I can scarcely visualize a scenario where $150,000 per download would be appropriate. But the threat is there and the industry is blowing on that horn as loudly as possible.

What is the best way for 1000+ people who have received subpoenas to challenge the RIAA? A class action is possible in a case in which there's a common nucleus of operative fact, in which each claim arises out of the same transaction or occurrence. Might a class action be possible here, given that the identities of all those affected have been compromised by the RIAA's actions? Could the fact that similar injuries have been caused by the same RIAA campaign make a class action appropriate?

A class action could certainly be appropriate. I know the ACLU and EFF are watching these matters very closely.

What advice do you have for someone who has RECEIVED an RIAA subpoena?

It depends on who it is that receives it. If it’s an ISP, I think Verizon has the most responsible model for dealing with the subpoenas. If it’s an individual subscriber, consider yourself fortunate to have received notice of it. The scenario Jane Doe is fighting is the one where you don’t know about the subpoena until the RIAA shows up at your door with a summons and a lawsuit. In any case, I strongly suggest seeking legal advice to deal with it. That’s not a plug for lawyers, it’s just that I’ve heard lots of people voice bad ideas about how to respond and many of those ideas would just make a bad situation worse.

Thank you very much for letting us interview you, Glenn. We all look forward to seeing the results of your client's case!

Glenn Peterson was interviewed by Roger E. Rustad, Jr. (scubacudaNO@SPAMiname'com), contributing editor of the Berkman Center’s GrepLaw.

Felten Tinkered by Business Week | Cyber-Rights for ...Cyborgs!  >


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    Jane Doe, $150K/download, and Using the Color of Law: an interview with Glenn Peterson | Login/Create an Account | Top | 13 comments | Search Discussion
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    funny (Score:1)
    by scubacuda (scubacudaNO@SPAMiname.com) on Wednesday August 27, @11:03AM (#1070)
    User #483 Info | http://www.greplaw.org/
    My favorite comment [slashdot.org] on /.

    There are a thousand forms of subversion, but few can equal the convenience and immediacy of a cream pie. Noel Godin

    [ Parent ]
    Antitrust (Score:1)
    by MacWiz on Wednesday August 27, @11:20AM (#1071)
    User #794 Info | http://www.azoz.com/
    Why does the minority get to control the world?

    The RIAA represents less than 10 percent of the copyright owners of recorded music, but owns 90 percent of the market for recorded music.

    There are tens of thousands of independent musicians freely offering their music on P2P nets, such as Kazaa. We see it as our only way to reach a global audience without selling our souls to a major label.

    The RIAA wants to shut us out. That's what this is all really about. The government doesn't care about us either, even though we are all individual small businesses. If anyone should be bringing up a class action suit it is the independent artists. The major labels have about 7,000 acts currently on their rosters. Go visit iuma.com and you'll find that there are more than 100,000 artists listed. What about the other 93,000 acts that aren't part of the RIAA? Who is protecting our legal interests?

    No one. Not the RIAA, not ASCAP, not our representatives. We have no lobbying power, no access to massive political contributions, no voice.

    Copyright laws were designed to protect the artists and creators of copyrighted works, not the publishers and "intellectual property owners" who have wrested possession of copyrights through recording contracts that can best be described as financial rape.

    Now they're suing the people who truly are looking for music just to stop them from finding the rest of us. Art is not about money, it's about creating for the benefit of the soul and our inner voices.

    The best thing that could happen to music in this century, as young as it still is, would be to eliminate the recording industry and open it up to the artists instead of the RIAA lawyers.

    But who will fight for us?
    [ Parent ]
    It's a sign of the times (Score:0)
    by Anonymous Coward on Wednesday August 27, @03:31PM (#1084)
    We can talk about all of this until we are blue in the face. Remember those annoying FBI warnings at the beginning of every prerecorded videocassette made in the US for the last 20-odd years? Copying those forms of media could serve as reason to slap you with up to $100,000 fine and up to FIVE YEARS in jail. The warnings have always been there (at least for the past TWO DECADES). There has been no real reason to ENFORCE the restrictions until recently. Why hasn't the MPAA and RIAA focused on 'the little guy' in the past? Because the quality of the output by these small fries was not nearly as good as the media that was put out by the big corporations. Of course there are exceptions to every rule, but the fact of the matter is that for the first time in history big media corporations are facing the real possibility of being thwarted by some kid with a computer and free time. How many people have you found that listen to MP3/Ogg/WMA/etc give a damn that the quality is not quite "pristine CD"? The vast majority of ppl I know who have listened to both tell me that the quality of MP3 is 'good enough'. That is the clincher, now we no longer have to look to big media giants as the only way to get songs/movies/etc that are 'good enough'. This has been going on for a long time in the desktop publishing industry. It will cut costs! (it did) It's will be more flexible! (it is for the most part). There are SO MANY things that we as individuals can do now with our machines that would have required an army of personnel, several large expensive printers and several fridge-sized machines only 10-15 years ago. Sure we still need recording studios and the like, but the people who listen to the music have realized (at least some have) that they don't need to pay all of that cash for a CD anymore. They will be sneaky and rip a friends copy. Multiply this several thousand times and you can see why the RIAA is up in arms. I hate to say it, but the RIAA does have the right to go after people who take stuff they produce and copy it willy-nilly. Even if it's AM quality 8k .au files, it's still against the law. I don't agree with the way that they are going about it though, but you need to see things from the side of the RIAA and how this P2P stuff affects their position. The RIAA needs to save face. Simple as that. In the market, they can't find a better alternative to P2P that they can control. The music industry already has a lock on radio stations (clear channel) which is pushing out smaller competitors who offer more options. The law doesn't run on internet time. It will have to catch up. Until it does, and copyright rules are written to reflect the fact that things HAVE changed, the RIAA can follow the letter of the law and get away with it. This goes alot further than a few songs on Kazaa. Everything these days is touched by technology to some extent. One could even argue that it is patently unfair for the industry to take advantage of technological progress (78 -> 45 -> LP -> Cassette -> CD ...) but not allow the actual users of the technology to benefit from its inherent advantages. The RIAA would prefer to keep the law firmly in the pre-internet age, forever. That's where it works best for them. They see no reason to change, and as long as politicians are still taking money from the industry, it's hard to say when this will ever change. The biggest dissapointment is that the industry is going after these people rather than attempting to find a real way to evolve with the times. Money eventually won't be made on CDz anymore, you could argue that they are still a throwback to 1983. Sounds easy enough to fix doesn't it? Just update the laws. If only it were that easy in real life.... I hope this P2P debacle blows up in the RIAAs face.
    [ Parent ]

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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