The Recording Industry Association of America's aggressive campaign against college students could take a hit soon. Federal Judge Colleen Kollar-Kotelly recently expressed skepticism about the industry's ex parte subpoenas and gave its lawyers until today to justify their policies.
Her request stems from the case Arista v. Does 1-19. Doe 3, an unnamed student from The George Washington University (GWU) who is a defendant in the case, has argued that the RIAA has acted wrongfully under the Cable Communications Policy Act (CCPA) to obtain subpoenas for the names of students linked to specific IP addresses. Doe 3 filed a complaint on Sept. 19.
The CCPA specifies that a subpoena may be issued to a cable operator or provider for the name of certain users. But Doe 3 feels that it is being inappropriately applied to GW because the university neither provides cable service nor operates a cable system.
Kollar-Kotelly agreed with this reasoning and issued an Order to Show Cause asking the RIAA to explain why the 19 subpoenas should not be quashed. All of them target students who have allegedly engaged in illegal peer-to-peer sharing.
In her order, Kollar-Kotelly cited the decision this summer in Interscope v. Does 1-7. In that case, Judge Walter Kelley, Jr., ruled that the CCPA was the incorrect law to use to request subpoenas because the College of William and Mary is not a cable operator.
Kelley also noted that even if the College of William and Mary were an operator, only a government entity may get court orders to obtain individual information linked to a cable subscriber.
"It was inevitable that college students would eventually challenge [the RIAA]," said Dawn Irish, the associate director of outreach for Tufts' University Information Technology (UIT) Office.
Attorney Martin Oppenheimer, Tufts' senior counsel for business and corporate affairs, agreed.
"The RIAA expected that targeted students would mount a legal challenge at some point," he said.
And it now appears that the industry is prepared to fight back. Cara Duckworth, the RIAA's communications director, said she is confident about her organization's subpoena power, noting that "the courts have overwhelmingly ruled in favor of record companies" in the past.
Even if the RIAA fails, it is unlikely that college students will feel less pressure any time soon.
"I think the RIAA will use any means at their disposal to make people think twice about illegally downloading and uploading copyright-protected materials," Oppenheimer said.
Still, policy changes are not out of the question.
If the RIAA can no longer utilize the CCPA to obtain subpoenas for suspected file sharers, there are no other obvious avenues to subpoena specific college students.
The Digital Millennium Copyright Act (DMCA) provides a framework to request subpoenas for names, but it may not apply to colleges because they usually only transmit the music; they do not cache, store or host it.
Doe 3 asserts in the motion that the RIAA does not "have any authority by which they can intrude upon an Internet [user's] fundamental right to privacy and anonymity."
Dean of Student Affairs Bruce Reitman said that if this is true, the industry will likely look elsewhere.
"If they can't get subpoenas about the individuals who are connected to particular IP addresses, then they'll have to find another way," he said. He suggested that they might try to target Internet service providers.
The RIAA has already been promoting legislation encouraging universities to actively control illegal file sharing on their campuses.
"The recording industry is trying to place the burden of policing on colleges rather than going after individuals," Reitman said.
This has been especially true since February, when the RIAA unveiled its pre-litigation settlement campaign. The industry mailed its tenth wave of letters on Nov. 15, bringing the total number of settlement offers sent to around 4,000. Tufts has received 34 to date.
Each offer contains an IP address. The RIAA threatens to subpoena the name connected with the address should the student not settle out of court. Settlements range from $3,000-5,000.
Irish said that the outcome of the GW case will not drastically affect Tufts' policies, as university officials will work to uphold copyright laws regardless of the verdict.
"Respecting copyright [laws] is a responsibility of universities, and not just because someone is saying you need to or threatening lawsuits," she said.
Oppenheimer agreed. "Tufts will continue to take reasonable steps to discourage illegal file sharing, not simply to avoid RIAA action."
But both still feel that the case is far from irrelevant.
"If the GW challenge is successful, other students will probably make a similar effort elsewhere," Oppenheimer said.
"This will be precedent-setting regardless of which way they rule," Irish said.
