Thursday, August 09, 2007

University of South Florida Students Attack RIAA's Ex Parte Order

Two University of South Florida students have gotten together and made motions, in Interscope v. Does 1-40, to (a) dismiss the RIAA's ex parte case on the ground of misjoinder, and (b) vacate the ex parte order and quash the subpoena directed to the university seeking student identities.

Memorandum of Law in Support of Motion to Dismiss for Misjoinder*
Memorandum of Law in Support of Motion to Quash Subpoena*

* Document published online at Internet Law & Regulation

Commentary & discussion:


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AMD FanBoi said...

As is artfully pointed out on page 8 of the misjoinder dismissal request, such a case of 40 unrelated Defendants against 15 unrelated Plaintiffs, with no connection in common between them, would be impossible to fairly try. Heck, it would be impossible to try at all. Since obviously the RIAA has no intent of actually trying this case anyway in its present form, they should be prohibited from even filing it and using it for court-ordered discovery.

In fact, their lawyers should be disbarred for even attempting such a misuse of the court system!

I would think that the RIAA must be rethinking their strategy of suing college students right about now. There's more fighting back at the ex parte stage here in the last week from them, than in the approximately 30,000, previous cases combined.

Btw, I'd sure hate to be Doe #1, who still sticks around if the rest are severed.

And it sure would be funny of one of these cases got randomly assigned to the same judge who Ordered them not to do this again. Could he sanction them for disobeying his previous order under such circumstances? Charge them with RICO, since they clearly have a pattern of violating court orders now?

Ray, a question for you. Who is defending the Federal privacy laws in these cases? Clearly not the RIAA. They're seeking an end-run around them by attempting to subpoena non-party universities. Not the judge. It's his/her job to decide the case, not advocate for one side over the other. Not the Does. They're not even represented in court yet.

My question is: should the US Justice Department be called into court at the ex parte stage to represent the federal government's interest in seeing that Federal laws are being properly upheld in regard to the privacy of student information, and the applicability of subpoena requests under the Cable Communications Policy Act of 1984 and/or any other justification for the ex parte requests for such subpoenas?

Btw, for the non-technically inclined here, the demand for MAC addresses of computers tied to the IP addresses in question is an attempt to identify individual computers by their MAC address. This way later down in the process, if the demand is made to produce the computer in question, the MAC address at that time can be compared to the original MAC address in an attempt to prove that the original computer wasn't supplied as demanded. Watch out for this trap.

The flaw here is two-fold:

First, MAC addresses can be changed by the user in many cases. Heck, I'd change my MAC address of my NIC card (Network Interface Card) if I felt it was about to be used against me in a moment. Be aware, that original MAC addresses are often included as stickers on network equipment, so changing such an address might be detected if the original sticker remains. It might also be on file with the manufacturer who sold you the equipment. If one were to attempt this for any reason, change it early on, and change it back to the original settings later, would seem advised. And don't change it, if ordered not to.

Second, as has been pointed out otherwise by experts in other filings, if you're behind a NATing router, wireless connection, or some other hardware, the MAC address of that router will be the one detected, not of the actual computer. And that address can often be set to any setting desired in order to make the router "invisible" to the greater network at large. While this can help you, it can also hurt you by making it harder to prove innocence.

And one last parting shot: If the RIAA did have to file 40 separate cases against 40 separate Doe Defendants, imagine them having to attend 40 individual scheduling conferences, respond to 40 different sets of motions, and see everything else increased at this stage times 40. In fact, since Defendants could leverage knowledge against the many weak points of the RIAA's case at this point in the proceedings, the balance of power would appear to shift in the Defendant's favor for the first time. Imagine that!

ReallyEvilCanine said...

First, MAC addresses can be changed by the user in many cases.
Correct, even under Windows. You can do it manually or with some third-party program. I'd be surprised if any even mildly tech-savvy person using any sort of P2P application didn't first change his MAC address before connecting so that the card's actual address remained "clean".

It might also be on file with the manufacturer who sold you the equipment.
The MAC address includes a manufacturer ID which can be easily looked up. The manufacturer can identify a particular ID and match it to a specific card and serial number, another reason to spoof a MAC address before connecting on-line.

if you're behind a NATing router, wireless connection, or some other hardware, the MAC address of that router will be the one detected, not of the actual computer.
And if there's a wireless router anywhere behind that, plausible deniability comes into play since even when encrypted, access isn't difficult. the WEP protocol has been thoroughly broken and WKA will fall next.

RIAA's lawyers are only getting away with their spurious claims and arguments about IP and MAC addresses identifying specific people because the judges aren't technically savvy and the defense lawyers aren't able to explain the workings (such as the difference between circuit- and packet-switched networks) in a way that can be easily understood, allowing RIAA to keep pulling out their old (and frankly, deceitful) telephone analogy.

StephenH said...

I beleive that the courts need to follow the decisions of:

* Interscope Records v Does 1-25
* BMG Music v Does 1-203
* In re: Cases Filed By Recording Companies

I feel that misjoinder is an RIAA trick to file with less fees to run an "information farming" lawsuit and then to dismiss them. Sadly, the RIAA wants to play it cheap!

Iggy said...


I have a question: On these john doe lawssuits can anyone who may potentially be a John doe file to sever/quash? Lets say RIAA files against a University...and your University did not forward the notice to the students...Can any student hearing of the suit file to sever/quash since potentially they can be the john doe? Even if they may not have standing at the end because they aren't the John Doe?

Reason I ask is I was thinking that it could be possible for a random student (or ex-student) to borrow one of these motions to quash/sever, change a few lines and file them and force the RIAA to respond. If that happens at every university as soon as the RIAA announces a new round it might make it much more expensive for RIAA during this phase. Also, since RIAA then voluntarily dismiss these suits, anyone contesting won't be on the hook for attorney's fees?

Just a thought, what do you think?


Ray Beckerman said...

AMD, If the universities don't defend the privacy laws, the students will have to do it. Lots of luck on getting the Justice Department to intervene on behalf of the students. OK you're in charge of getting that done.

Agreed, realevilcanine.

You're right stephenh. The RIAA is in contempt of the Austin, Texas, order.