We have learned from The Post in Athens, Ohio, that an Ohio University student had made a motion to quash the RIAA's subpoena, back in July, and that his motion was just denied, in a decision finding that "the University maintains the log files containing the subscriber activities for only a limited time period". The name of the case is Arista v. Does 1-15, in the Southern District of Ohio, Eastern division, located in Columbus.
[Ed. note. This motion had not been on our radar. We learned about it from The Post. We are surprised at the Court's finding that the University would only maintain the records for a limited time and would then discard them, as we do not believe there is any evidence in the record supporting that finding, or that the University was asked whether it would agree to maintain the records long enough to afford prior notice and an opportunity to be heard to the affected students.]
[Ed. note. Ohio University has since gotten the RIAA to back off by paying $60,000, plus $16,000 per year "maintenance", to Audible Magic, the 'business partner' of the company part owned by the RIAA's "expert", Dr. Doug Jacobson.]
Motion to quash*
November 5, 2007, Decision of Magistrate Judge Denying Motion to quash*
* Document published online at Internet Law & Regulation
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3 comments:
Also, the RIAA typically sends colleges and universities "preservation notices" requesting that documents that identify the name, current (and permanent) addresses, telephone numbers, e-mail addresses and MAC (Media Access Control) address be preserved in the event a subpoena is served on the institution. It seems after receiving this notice it is highly likely that any university would maintain this information for as long as any cases are pending, and likely much longer.
It is absurd to think that there is a college or university in the United States that would not agree, after being advised that a lawsuit has been commenced, to preserve the records pending determination of a motion for discovery of the John Doe identities.
If anyone needs a reason to despise the court system and feel its is highly biased against the little guy, just read the reasoning of the Magistrate Judge in this case. As was clearly and cogently pointed out in the Motion to Quash, the RIAA has no case.
Given the history of the RIAA suits, your innocence doesn't matter to them. If they can't punish you by an extortionaire settlement first, they'll punish you by immense legal bills afterwards. Such a pattern of behavior should have been taken into account by the Magistrate Judge, but to all appearances it hasn't been. Given that personal privacy is at stake, I would have hoped for a higher standard of proof before that privacy was allowed to be pierced, because allowing such discovery does impose a SUBSTANTIAL burden on any such Defendant.
Seems to me that Doe #13 could have strengthened his case to quash expedited discovery had it simply been made clear that the University has agreed to preserve any relevant evidence until a proper hearing regarding regular discovery could be held. Doing so would have removed one of the strongest arguments used in the need for expedited discovery. Chances are excellent that the University has already agreed to preserve this evidence, given that many, if not most, purge their logs after 30 days, and we're well past that time now. I'm certain that no reasonable case can be made that any evidence that still exists at this moment, is in any imminent danger of destruction in lieu of expedited discovery, which tramples on the rights of Defendants.
The Magistrate Judge also shows his ignorance of the technological truths here when he states (page 6) that "...only the University can identify the particular computer using the unique Internet Protocol ("IP") address..."
This is so wrong that [--deleting what I really want to say here because you won't put it in your blog--], had I actually said it in public myself, I would be so ashamed and humiliated afterwards that I would have needed to immediately resign my position afterwards, given that my decisions, when poorly made, can and do destroy people's lives.
The ONLY thing that the University can say with any certainty was that they assigned an IP address to some IP-enabled device with a specific MAC address itself. They cannot identify what kind of device it was (computer, router, cell phone, other IP device), exactly where that device was located (even if they could use their own router logs to identify a router port, a hub after that port can disseminate the connection far beyond any known end of the wire), who owned that connected device, if that device was connected to any, or how many, other devices, or who was sitting at the keyboard of any of them at the time(s) in question. Yet without any further proof, the RIAA -- who just demand a single name here -- will sue that name for up to millions of dollars, which have NO RELATIONSHIP to any Actual Losses they may have actually suffered.
And this Magistrate Judge is completely prepared to let that happen.
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