Tuesday, November 25, 2008

Practice Tip: Motions to Quash After Judge Gertner's November 24, 2008, Decision in London Sire Records v. Does 1-4

As you know, on November 24th, in one of the "John Doe" cases targeting Boston University, consolidated under the heading London-Sire Records v. Does 1-4, after the university advised the Court that it could not identify John Does #8, 9, and 14 to a reasonable degree of technical certainty, Judge Nancy Gertner deemed the letter a motion to quash, and granted it, quashing the subpoena as to those defendants:

The Court treats Boston University's 9/23/08 Letter as a Motion to Quash and GRANTS the motion with respect to Doe Defendants # 8, 9, and 14. The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty. As a result, the Court finds that compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery. Accordingly, under the test laid out in its 3/31/08 Order, the Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14.
(emphasis supplied) We have been saying this for years. It is refreshing to see it finally recognized in a decision. Interestingly, it occurred in an undefended case, where no "John Doe" appeared. The Court, however, deemed the University's letter explaining the identification problem a motion to quash, and granted it.

The reason we believe this little, 4-sentence, decision is so important is that if the principle it enunciates is followed consistently by Judge Gertner and by other judges, very few, if any, RIAA subpoenas will withstand a motion to quash going forward. E.g., if this principle had been followed in Arista Records v. Does 1-17 targeting University of Oregon students, or in LaFace Records v. Does 1-14 targeting University of Arizona students, in both of which the university's plea fell on deaf ears, the respective subpoenas would have been quashed as to all, or at least most, of the students.

Accordingly, I urge every practitioner who is consulted by a John Doe defendant, and is contemplating a motion to vacate the ex parte discovery order and quash the subpoena issued under it -- whether through a college or university or through a commercial internet service provider -- to give careful consideration to the November 24, 2008, decision in London-Sire Records v. Does 1-4.

And I urge every college and university counsel, and internet service providers' counsel, to consult with your technical staff and recognize that Judge Gertner's decision implies a responsibility on your part, on behalf of your students and subscribers, to advise the respective courts from which the subpoenas have been issued, before making disclosure to the RIAA, as to which, if any, "alleged infringers" can be identified "with a reasonable degree of technical certainty", as Boston University did, so that the Court can pass upon the question .

Order (a) treating University's letter as motion to quash, and (b) quashing subpoena as to John Does #8, 9, and 14

Commentary & discussion:

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Keywords: lawyer 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 portable music player

4 comments:

Anonymous said...

I'd love to read this order, but all i see is the district court email notice.

MH

StephenH said...

This is a major breakthrough. The RIAA should have known that IP address logs identifing people is not an exact science and is not near as accurate as DNA. I wonder if RIAA will dismiss as to those does or try to appeal this.

Ray Beckerman said...

No, anonymous MH. This is the Court's order. It's all there is. There is no separate piece of paper. Just a docket entry. Although it's in the form of an email, if you check the court record in PACER you'll see there is no other paper.

Albert said...

I think further questioning of the Network Admins would reveal that the remaining John Does might also be in doubt.

I would also love to see the Network Admins of BU and other similar cases to express doubts to the Courts as to the remaining John Does. This is because even with so called "tight security", the identification of the ACTUAL HUMAN responsible for the device providing filesharing even in the single occupancy dorm rooms is still in doubt.

For example, in this case there are IP's in the campus wireless network are accused of file sharing. The admins are using the username and password used to log onto the campus network as the means to identify the HUMAN. Most campus wireless networks have one or more widely known username/password pairs that are often used by visitors or others not wanting to log in under their own name. A statement such as "At the time in question, 100 different devices were logged into the wireless network using the same username/password as the device with the IP in question", would leave GREAT doubt as to if the owner of the login name did it.

As to the dorm rooms, wireless routers are often plugged into the network jacks so the students in that room can get a clear, clean connection with their wireless enabled laptops. These wireless routers can be accessed by anyone in range of the device, so even though the Network Jack (and its associated IP address) can be registered to a human, the wireless availabilty makes it impossible to tell WHAT HUMAN actually did have a device with P2P software using that connection.

There are 2 ways an admin might be able to tell:

1) The first 3 hex digits of the MAC address identifies the manufacturer of the device, if it belongs to a maker of wireless routers, odds are it is NOT a regular workstation plugged into that jack.

2) Some places might allow IT people to actually physically inspect that jack, and if such a device is found plugged into it that is conclusive.

Statements of these facts in regard to the remaining IP addresses by the technology department of such facts might get those quashed as well in both this case, and also in most similar cases.

At one time Universities tried to enforce policies that prevented privately owned access points from being used on campus. However the FCC in a dispute between Continental Airlines and the Agency who operates Boston's Airport has put these rules to rest. The FCC has ruled that Wireless Antennas that are contained within privately leased space (Which would include a dorm room) can NOT be regulated by the landlord. Boston Logan Airport entered into a pay for access contract, and did not want the airline providing free access in their lounge, because it allowed people to access the internet without using the pay-for-access provider selected by the airport, and which the airport shared the revenues of this operation. See: http://edocket.access.gpo.gov/2006/E6-20142.htm
for the final rule by the FCC on this matter.

To the best of my knowledge there is NO requirement that anyone has to lock down their wireless acccess point. In fact, many are shipped wide open in their default configuration. Within 1/2 mile of my house, I can pick up dozens of unprotected wireless devices. These devices are set up with the default SSID and channel selection and very likely were just plugged in and never configured for security. I dont see any reason the same thing would not often happen in a campus enviroment as well.

Albert