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.