Tuesday, April 15, 2008

Second university, Marshall U., moves to quash RIAA subpoena; Magistrate Judge denies motion; Arista v. Does 1-7

We have just learned of a motion to quash that was made by a university, in a Huntington, West Virginia, case, Arista v. Does 1-7, in February, and that the motion was denied by the Magistrate Judge yesterday.

The motion was made by Marshall University. It was represented by the Attorney General for the State of West Virginia.

The decision of the Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement.

Since the decision is by a Magistrate, it is appealable to the District Court Judge.

This is only the second instance of which we are aware of a university contesting an RIAA subpoena, the first being the University of Oregon.

Moving affidavit*
Moving memorandum of law*
RIAA opposition*
Movant's reply memo*
RIAA surreply memo*
April 14, 2008, Order of Magistrate Judge denying motion to quash*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Herald-Dispatch.com (Huntington, W. Va.)
p2pnet.net
Ars Technica
The Parthenon
The Flat Hat
Slashdot




Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

12 comments:

Ray Beckerman said...

I've removed the last line of a comment by alter_fritz......

Here's the comment without the last line:

*********************************

"The decision of the Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement."

without having read anything so far, Sure, the RIAA asks for identities just for fun, to send them a free copy of the campus downloading propaganda information video or to give them hundrets of Promo CDs where they reserve ownership rights into!

************************

Alter_Fritz said...

so no rule 7 violations masked as questions!

Will try to remember that Ray, Mea culpa

Anonymous said...

The decision of this Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement.

Considering that many lives are affected by this (unbelievable where have you been these last 3 years) decision by the Magistrate judge, is he willing to make the Defendants whole out of his own pocket if he happens to be wrong on this tiny little point?

-DM

Alter_Fritz said...

"This epidemic of piracy on the Internet has
spread to Marshall University (the “University”) where the seven Defendants in this case
attend school."
Pure speculation (if we don't want to accuse RIAA lawyer so early of "lying") on behalf of the RIAA!
As the tech guy of the Uni pointed out "visitors" could used the IP addresses in question at the time in question. The RIAA does not know what school "defendants" attend! They do not even know that they have defendants at all. All they have are IP addresses not unknown persons doing something

"unlawfully downloading and distributing those recordings as well as
thousands of other recordings to millions of other users"
Where's the prove for these "millions" from those 7 students?

"Meanwhile, Defendants continue to infringe." so, where are the amendments to the complaint then if you know that for certain?

"Plaintiffs now insist that they seek only information “sufficient to identify the individual or
individuals assigned to the IP addresses listed in the subpoena at the date and time of infringement.”
Opposition, p. 8. If this indeed is the only information that Plaintiffs seek, they should subpoena
this information. What they have asked for in fact is much broader: “[i]nformation, including names,
current and permanent addresses, telephone numbers, and MAC addresses sufficient to identify the
alleged infringers ....” Motion to Quash, Exhibit A, p. 1. Such a request requires that Marshall go
beyond identifying the individuals assigned to live in a particular dormitory room or the owner of
a computer associated with a particular IP address. Plaintiffs submit their subpoena does not require
Marshall to identify the alleged infringers, but Marshall effectively must identify the infringer to
gauge whether it is providing information “sufficient” to identify the alleged infringer."

That's a very good point! Now RIAA argues they demand something different than what they had asked for before. Regular Readers of this blog will remember that in a differetn case the RIAA already lied to a judge when they claimed that given the response they god from a nearly identical boilerplate sub against an ISP (AOL if i remember correctly) Taht this ISP identified the defendant in that case "as the infringer". So RIAA clearly asks for information who is an infringer not who might be responsible for an IP address asignment at a certain time!

Question Can the female RIAA lawyer be held legally responsible to the promiss she made in footnote 1 in document "arista_does1-7_080331RIAASurreplyMemo.pdf"?
Install this device from DR. J and no more subpoenas will come!
If I were a Uni guy I would nail the RIAA on that promiss. Why does RIAA not DONATE such a system to the university then?! It shouldn't be right that the universities have to pay for something that will benefit allegedly mainly the plaintiffs here! Clearly plaintiffs already have deals with the "expeert" that creates such filters and also acts as their HDD snooping guy, so they in reality are the ones that actually Profit from both situations: If infringement actually occurs via their totally inapropriate monetary demands, if no infringements occur via the money for the filter and the maintainance of the software for it RIAA and the corporations they work with are the only money making guys here!


I understand the order Of judge tailer now after I have read it that the 7 individuals that are not the alledged copyrightinfingers but only some IP-address holders can move on their own to squash the discloser of theri names to RIAA. Is that interpretation of the order correct ray?

Anonymous said...

From the RIAA Opposition:

Meanwhile, Defendants continue to infringe.

And you've proven this how?

Oh, you mean because they still have music files on their computers, even if they're not even connected to the Internet any longer, they're still infringing because their copies aren't authorized.

And you know this how?

Oh, you don't really know anything about their computers, if they're currently connected to the Internet, if any music files remain on them, or if any P2P applications are running any longer.

But you swear to the judge that you do.

Oh, you lied.

And from the Sureply:

Plaintiffs have made abundantly and repeatedly clear, both in their Opposition to the University's Motion to Quash and again at the March 18, 2008 hearing, that they are in no way asking the University to undertake any factual investigation to comply with the subpoena.

So you don't care if the information is accurate as long as you've given someone to sue.

AND THE JUDGE IS WILLING TO PERMIT THIS??? It boggles the mind.

Lastly, from the judge himself:

by their subpoena, seek names and other identifying information of the persons associated with the IP addresses at the particular dates and times.

People do not have IP numbers associated with them.

-DM

Ray Beckerman said...

It was a very ill-considered decision by the Magistrate.

In the first place, the RIAA has already assumed that they are infringers by suing them as John Does.

In the second place, the RIAA has no intention of conducting the investigation which the information technology guy from Marshall correctly pointed out was necessary.

I hope the University files objections (i.e. appeals it to the District Court Judge).

Ray Beckerman said...

Also let me take a moment to commend the Marshall University Board of Governors for taking action to protect its students' rights. Anybody thinking of applying to Marshall -- this action on the part of its Board of Governors should count as a big plus. This is an institution run by conscientious people who believe in the rule of law. Also hats off to its attorneys, who were absolutely right in what they wrote in their motion papers.

Anonymous said...

Alter_Fritz,

That's the best suggestion I've seen in a long time. If the RIAA was truly being damaged by millions of files shared, and if they have a great workable solution in Dr. J's work, it would be a far more effective use of their resources to give this solution to the colleges and encourage them to implement immediately.

And since they "know" that this solution fixes everything, they wouldn't even need to be searching colleges for infringers any longer.

(Of course they know that this filtering system is total bunk, and the colleges that have it are simply paying Protection Money to the extortionists.)
-DM

Ray Beckerman said...

Alter_fritz said "so no rule 7 violations masked as questions!"

:)

I guess you've had so many thoughts which you've self-censored because of my comment policy that you've memorized the number of the rule you're most often tempted to violate: the one that prohibits intemperate criticism of judges and attorneys.

I know the feeling.

When I see a decision like this one, where the Magistrate decides the motion as if the RIAA is just looking for information, when the RIAA has already sued the person, I feel the same way.

Ray Beckerman said...

It just makes no sense.

Anonymous said...

Marshall should just provide a MAC address for the IPs in question and state it was unable to determine the user from the information given.

In college setting, especially in dormitories, computers rarely need to be logged in, as is traditionally done with residential internet services. There's no way to register an natural person to the computer if they don't have any authentication.

Arista et al can then search all the MAC addresses for all the internet devices of all the people in dormitory, and conduct the investigation themselves. I'd imagine you'd need a subpoena somewhere along the line there.

Steve said...

If the university does appeal to the District Court Judge, can they use the RIAA's whole history of suing as a way to obtain the identity of Does as evidence that the Magistrate Judge was mistaken, or would that information not be allowed because it didn't happen in this district? I remember reading something about rulings in one district not necessarily becoming binding in other districts; is evidence of the RIAA's past behavior the same type of thing?