Now that college and university administrators are learning that their policy of appeasement didn't work (it never does when you're dealing with bullies), I thought this would be a timely moment to reprint my "Open Letter to Colleges and Universities", which first appeared, in its initial form, on March 9, 2007, and was updated a few times last year. The post appears below. -R.B.
This is an historic opportunity for you to take steps to make the RIAA's litigation campaign more of a level playing field.
The way things are:
Once the RIAA has obtained whatever "settlement" money it can squeeze from students and parents willing and able to pay the money, and to agree to the other extortionate demands in the RIAA's standard nonnegotiable form 'settlement' agreement, it will bring a "John Doe" proceeding against the others. Contrary to the spirit of the Federal Rules of Civil Procedure, it will do everything it possibly can, in that proceeding, ex parte. It will file the complaint without notice to anyone, and submit the ex parte discovery order application without notice to anyone. Then, once it's gotten an ex parte order signed by the judge, it will give minimal notice to you with minimal notice to your students, of an order which has already been entered.
Typically, "John Doe" will receive only a copy of a subpoena and a copy of the order with a letter from you, and will have just a few days, or at most a couple of weeks, to respond before his or her personal confidential information will be divulged. Meanwhile, if the student were to confer with a lawyer the lawyer doesn't know what to say, because he or she has no copy of the underlying summons and complaint, no copy of the papers upon which the ex parte order is based, and no copy of the judge's rules, all of which a defendant normally does receive in any normal litigation.
What you should, at a minimum, do for your students.
What you can do is insist that the RIAA stipulate with you that (a) any motion for an order granting discovery of the students' identities will be on notice, both to you and the students, rather than ex parte, (b) that the RIAA must furnish to you, for each "John Doe", a copy of the summons and complaint and exhibits, a full set of the motion papers, and a full set of all other court documents which are required to be served on the defendant when an action is initiated... for you to distribute to the affected students, before -- not after -- the motion is to be heard. A very, very important decision was handed down in New Mexico, in Capitol v. Does 1-16, 07-485 (WJ/LFG), involving the University of New Mexico, where Magistrate Judge Garcia ruled that the motion should be made on notice rather than ex parte.
Judge Garcia ruled that ex parte applications are the exception rather than the rule, that the RIAA's claims of "irreparable harm" require "Coleridgian suspension of disbelief", that "the harm related to disclosure of confidential information in a student or faculty member’s Internet files can be equally harmful", and that the RIAA should meet and confer with the attorneys for the university to devise a procedure for giving notice both to the university and to the affected students and faculty members. Ultimately, Judge Garcia required the RIAA to provide 40 days notice to the affected students and to provide full sets of papers to the university for transmission to each student, to give them time to review the papers with counsel, and to oppose the discovery if they so chose.
In October, 2007, in Greenbaum v. Google, a New York court has reaffirmed the principle that identity information cannot be disclosed absent (a) prior notice to the anonymous person, (b) affording the anonymous person an opportunity to be heard in opposition to the application, and (c) an evidentiary showing of a prima facie case against the anonymous person. Application of this principle to the RIAA cases would defeat all of the RIAA's ex parte discovery applications.
If the RIAA refuses to stipulate to giving prior notice and an opportunity to be heard in opposition to the motion, you should go to Court yourself and get an order requiring them to comply with these fundamentals which are required by due process. Since the only possible claim of an emergency is that you -- the university -- will be destroying the records, you, as the university, can easily dispel that absurd notion.
What you should also do.
In the first place, the very legality of the RIAA's whole statutory theory for getting the ex parte discovery orders is in doubt. In Interscope v. Does 1-7, even though the application was ex parte, it was denied. The Court held that the statute relied upon by the RIAA was applicable only to discovery sought by government agencies. So you should certainly bring that case to the Court's attention; the RIAA lawyers will not.
And in Interscope v. Rodriguez it was held that the complaint used by the RIAA in all these cases fails to state a claim for relief altogether
As a general rule, the courts have held that in order for a claimant to get an order for discovery, from an ISP, of confidential names and addresses of a John Doe in a copyright infringement case, it must make a prima facie evidentiary showing, based on admissible evidence, that it has a case for copyright infringement against each "John Doe". See authorities cited in our memoranda of law:
Since the RIAA has been proceeding ex parte, however, and since they haven't been challenged by the ISP's, judges have usually signed off on the orders even though the applications were supported by conclusory, hearsay, opinion statements of suspect reliability which would never be considered admissible in any court in the United States. (Compare the courts of the Netherlands and Canada, where the ISP's challenged the application for "John Doe" information, and the Courts refused to grant the discovery orders, due to the unreliability of the RIAA's investigative "method").
The lack of reliability of the RIAA's "investigatory" technique is becoming more and more well documented. See, eg. the February 23, 2007, deposition of the RIAA's expert.
See also expert witness statement of Prof. Pouwelse and Dr. Sips:
and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy:
Other possible items of interest to include in your motion papers are (a) the in limine motion in UMG v. Lindor, which points out both that the RIAA has taken the position that MediaSentry will not testify as to the meaning of its "reports", and only the RIAA's "expert" can do that, and that the "expert's" testimony is inadmissible under Fed. R. Evid. 702 and Daubert, and (b) the report submitted to the USPTO in November 2006, and included as exhibit B to the answer in Atlantic v. DeMassi, which shows how most file sharers do not know if they are sharing files, and if so which files they are 'sharing'. http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_demassi_070320answercounterclaimsExB
Accordingly, we believe you should oppose the RIAA's application for an order of discovery.
Likewise, if you learn of the RIAA obtaining such an order ex parte, you should move to vacate the order.
Typically, the RIAA joins a number of "John Does" in a single suit, in order to save itself money, even though under the Federal Rules such joinder is clearly improper. See, e.g. In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004) http://www.eff.org/IP/P2P/RIAA_v_ThePeople/20041117_austin_severance_order.pdf
In fact, the foregoing case specifically enjoined the RIAA to cease and desist from continuing its practice of joinder, an injunction which the RIAA has simply ignored. Opposing the RIAA's deliberate misjoinder of unrelated "John Doe" defendants is another thing you can do to assist your students and their families in achieving a more level playing field.
A third thing you can do is point out to the Court that there is no known cause of action for "making available", which is the basis of the RIAA's suits, in the Copyright Act. See Elektra v. Barker, argued January 26, 2007, and awaiting decision.
In October, 2007, the State Attorney General of Oregon, on behalf of the University of Oregon, moved to quash the RIAA's subpoena on the ground that the RIAA's evidence fails to identify copyright infringers, so that the University -- were it to comply with the subpoena -- would be violating privacy laws by turning over the identity information being sought. The AG's office pointed out that in order to comply with the subpoena without violating privacy laws, it would need to conduct a thorough investigation, including forensic examinations, which it is not required to do under Fed. R. Civ. P. 45.
For a printer-ready version of this letter:
(Please print out and distribute to appropriate parties.)
Commentary and discussion:
*-Document published online at Internet Law & Regulation*
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