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Privacy, Piracy and Due Process in Peer-to-Peer File Swapping Suits:
A Federal District Court Strikes a Good Balance


Wednesday, Nov. 10, 2004

Since 2003, the Recording Industry Association of America (RIAA) has been suing peer-to-peer (P2P) file swappers and downloaders. The RIAA alleges, in its suits, that P2P file swapping and downloading, when it involves pirated files, violates copyright law - and, at times, also the Digital Music Copyright Act (DMCA).

The RIAA's first set of suits - 261 in all - was filed September 8, 2003. On September 30 of this year, the RIAA filed 762 suits. This October, it filed 750 more. In total, the RIAA has filed more than 6,200 such suits.

Here's how the RIAA typically proceeds. It files a "John Doe" lawsuit based on an Internet Protocol (IP) address connected to P2P trading via Kazaa, Grokster, Limewire, or another, similar system. The suit is often filed in the jurisdiction where the relevant Internet Service Provider (ISP) is located.

Once the suit is filed, the RIAA subpoenas the ISP to force it to disclose the real name of the "John Doe" associated with the IP address. That person, however, is not necessarily the file trader - it may instead be a relative, college roommate, or landlord. And neither that person - nor the file trader, if he or she is a different person - is given prior notice and a chance to fight the subpoena.

Fortunately, however, that may change. In late October, a U.S. District Court in Pennsylvania developed what I believe is a sensible and pragmatic approach to protect the Due Process and privacy rights of persons whose names are sought by of RIAA (and similar) subpoenas to their ISPS.

The need to protect copyrighted works must be balanced against the need to protect constitutional rights. The district court's order strikes just such a balance.

The Elektra Case: The Court Requires Notice to the John Doe Defendants

The Pennsylvania case is a civil copyright infringement action filed in March 2004, and entitled Elektra Entertainment Group et al v. Does 1-6. The plaintiffs, various record companies, subpoenaed the relevant ISP -- the University of Pennsylvania ("Penn) - for the names of the six "John Doe" defendants - as well as, for each defendant, their address, telephone number, e-mail address, and Media Access Control address.

But the court held that before revealing the "John Does'" information, Penn must first alert the John Does; explain what has happen; and explain how they may contest the charges against them. The court also provided a model notice attached to its order for Penn to use - which included a resource list of attorneys and organizations assisting individuals whose ISPs have received this kind of subpoena.

(It turns out there are many such resources - such as the website of the Electronic Frontier Foundation. Indeed, there is even a specific website, which bills itself as a "resource for individuals seeking information on how to defend themselves if their identity has been subpoenaed by a private third party seeking to enforce their copyrights on the Internet," and also for individuals who have received RIAA subpoenas. But the subpoena targets - who, again, could easily have been the actual user's grandparents - are not necessarily aware of them.)

Finally, the court held that the John Does will remain anonymous for 21 days from the date of the notice - by which point, they must either file a motion to quash the plaintiff's subpoena to the ISP, or have their identities revealead. In addition, if they do file a motion to quash the subpoena, they will remain anonymous while the motion is pending.

Prelude to Elektra: The D.C. Circuit's Verizon Decision

Even before the recent Elektra ruling, important - but partial -- progress was made in honoring the constitutional rights of "John Does" in RIAA suits.

On December 19, 2003, in RIAA v. Verizon Internet Services, the U.S. Court of Appeals for the D.C. Circuit held that it was not sufficient for the RIAA to simply send an ISP a form subpoena demanding the identity of a particular Internet subscriber - as the RIAA had claimed was proper under the DMCA.

Rather, the court held, the RIAA had to first file a civil lawsuit against the "John Doe" defendants, and then seek a subpoena. The DMCA subpoena procedure, it ruled, only applied to materials hosted by an ISP -- such as information stored on its servers - not materials for which the ISP merely acts as a conduit, such as P2P exchanges.

The Elektra decision builds on the Verizon decision by ensuring that the John Does have notice and an opportunity to contest the subpoenas to the ISPs, seeking their names. Previously, a customer's name would be disclosed before he or she even had a chance to challenge the subpoena to the ISP seeking the name.

The Virtue of the Elektra Ruling: Protecting Anonymous Speech

Ultimately, the truly hard questions for courts will arise when they must confront the motions to quash the subpoenas to the ISPs. What Elektra wisely did was to ensure that "John Does" have a chance to file such motions. But it remains to be seen how the motions will be resolved.

Resolving some such motions will be simple - subpoenas may be quashed based on IP address mix-ups. But resolving the others may be very difficult.

On one hand, there are important First Amendment rights implicated by file swapping and other communications on the Internet. A fear that online speech is not truly anonymous could stifle multiple types of expression and investigation - many of them very valuable. (For instance, a teen abuse victim who is not ready to go to the police, might at least be ready to seek help anonymously in an online chatroom, or to search online for possible resources to help her.) Anonymity has encouraged candor throughout American history -- even since the Founders used pseudonyms to communicate their views on the U.S. Constitution.

On the other hand, complete anonymity in cyberspace could allow Internet users to violate copyright laws with impunity. Worse, it could also make far worse crimes - such as terrorist acts - far easier.

The trick is to try to allow free speech to flourish, without making the Internet a safe harbor for terrorism. In the end, some balance is necessary.

That question isn't likely to go away anytime soon. But hopefully, the P2P question will someday.

With 60 million Americans using file-sharing software, despite the RIAA lawsuits, P2P sharing doesn't appear to be going away anytime soon more. The record industry may do better talking to file sharers, than suing them. It is time for a truce.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

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