July 20, 2006

RIAA conducting "reign of terror," lawyer says

Author: Bruce Byfield

The Recording Industry Association of America (RIAA) is waging a "reign of terror" against "defenseless people" in its efforts to prosecute people for illegal music downloads. So says Ray Beckerman, a lawyer with the Electronic Frontier Foundation (EFF) and the law firm of Vandenberg & Feliu in New York. Best known for his Recording Industry vs the People blog, Beckerman made the comment during a conference call yesterday organized by the Defective By Design campaign.

During the call, whose purpose was to raise awareness and to create a defence fund against the RIAA, Beckerman described what he alleges are the typical tactics used by the RIAA in suing individuals in the United States and other countries, and two of the cases that might become landmarks in the struggles against the RIAA's actions.

According to Beckerman, the RIAA has brought 19,000 cases against private individuals. "You have a multi-billion-dollar cartel suing all sorts of people who have no resources whatsoever to withstand these litigations," Beckerman says. His concern is that "due to the adversarial nature of justice, the RIAA will be successful in rewriting copyright law," particularly if the technological community does not resist.


Typical procedures

Beckerman is highly critical of the typical procedure in these cases -- and of judges who do not understand the technical issues involved. He describes the cases as beginning with an investigator locating a folder with copyrighted songs on a file-sharing network such as Kazaa. Without further research, the investigator takes a screenshot that shows only the text and meta-data. Through what Beckerman calls a "concealed process" -- a phrase that hints darkly of collusion and violation of privacy -- the investigator associates the folder with a dynamic IP address. The RIAA then issues a series of John Doe law subpoenas (ones brought against anonymous defendants) to obtain the name and address of the subscriber associated with that IP address.

These cases are brought in a city far away from the person who is about to become the defendant. Typically, defendants learn about the request for personal information only a few days before the hearing, and have no idea that they are about to be sued. "They don't have copies of court orders or any papers filed," Beckerman says. "They have absolutely no way to resist." Some learn about the subpoenas only after they receive a court order directing them to turn over their personal information. He describes this maneuver as "entirely illegal." Pointing out that tracing an IP address to a particular provider is simple, he adds that the RIAA must be "purposefully bringing those cases where they know that the people do not live so that they will get no information of any kind."

Most of these individuals are residents of the United States, since many countries, such as Canada and the Netherlands, deny the validity of such cases. "In the Netherlands," Beckerman notes, "the courts went so far as to say not only is it a bogus investigation but an illegal violation of people's privacy." However, in other countries, such as France, cases have been successfully brought through the RIAA's sister organizations, while in the United States, "judges have been rubber-stamping these orders."

This is the point where Beckerman and the EFF prefer to intervene in a case. They try to point out that "any real pirate would never leave the meta-data [and] would be using someone else's Internet access account," Beckerman says. "Even seeing the shared file folder doesn't tell you which computer it resided on, because you're seeing files from a group of computers that are connected."

The trouble is, Beckerman says, "The judges have no clue. They actually won't let me talk about it. There was a case in 2004 where an elderly judge was told by a lawyer in his brief from the RIAA that from the meta-data and the hash, you could tell that these were illegally copied files, which was, of course, nonsense. But the judge actually referred to that in his decision as to why he was upholding the subpoena." Often, the judges make decisions without hearing oral arguments at all.

Once the RIAA has a name, the RIAA brings a case against the individual identified. As Beckerman points out, at this point, the evidence is inconclusive. "At most, they can say that someone who might somehow be associated with that IP address might have made some files available. But they certainly don't know that the defendant did. All they know is that the defendant wrote out a check to the Internet provider."

However, this vagueness does not stop the proceedings. The RIAA's preference, Beckerman says, is "to extort a [cash] settlement." If an individual resists, the RIAA brings a federal suit against him, which few individuals can afford to defend against unless they can find a lawyer willing to work for free or for a nominal fee. "You'll notice that you'll never see a big law firm in that category," he says. "The big law firms are like any big corporation -- they need to make a profit. They would be interested in representing the RIAA, not the poor people who the RIAA are pursuing."


Two leading cases

After talking in general terms, Beckerman briefly described two of the cases that he believes could have far-reaching consequences. In Elektra vs. Barker, the defendant is a nursing student who lives in a housing project. The defence has made a motion to dismiss, because the case "doesn't specify any acts, dates, or times of copyright infringement as the laws normally require." In response, the RIAA claims that "merely making files available on the Internet is in and of itself a copyright infringement" -- an argument, as Beckerman points out that, if successful, "would probably bring down the entire Internet. Because of the implications of this argument, the Electronic Frontier Foundation, the Computer & Communications Industry Association, and the US Internet Industry Association have intervened on behalf of the defence, and the Motion Picture Association of America and the US Department of Justice on behalf of the prosecution. Potentially, the case could decide the fate of the RIAA cases one way or another. Yet, Beckerman says, "We've received no support of any kind from anywhere."

In UMG vs. Lindor, the defendant "is a home house-aid who's never even used a computer," according to Beckerman. "She's never operated a computer, she's never even turned on a computer. The only connection she has ever had to a computer is that she has on occasion dusted near the parts that she believes are a computer. And yet she is being pursued as an online distributor in peer-to-peer file sharing."

Since Beckerman became involved in the case after it had gone to federal court, he has tried to learn the details of the charges -- so far with little success. "The RIAA is trying to conceal the information about how it conducts its 'investigation,'" he says. "They have stalled every discovery request we've made" -- presumably because to reveal this information would also reveal the weakness of all the similar cases.

"Unless the world comes together and helps all these defenseless people," Beckerman concluded, "the RIAA's going to win all these battles. And they're going to rewrite the copyright law."


Questions and last remarks

After Beckerman ended his remarks, he took several questions from call participants. One participant, who worked in Student Legal Services at the University of Massachusetts, mentioned that her office knew of 52 students who were facing similar charges. Most of them settled out of court, but Student Legal Services was preparing to assist at least one case.

Peter Brown, executive director of the Free Software Foundation (FSF) and one of Defective By Design's chief organizers, wrapped up the call by emphasizing the need to support the defendants in these cases. What the RIAA is doing today with music downloads, Brown warns, other organizations may be doing next year if digital rights management technologies become commonplace in hardware. He urged call participants to blog about the call to educate others, and announced that a recording of the call would be available shortly on the Defective By Design site.

Brown also mentioned that people can donate money to the cause through the FSF Web site, or by sending checks earmarked "RIAA Lawsuits" to the FSF.

"We've come to see the battle against the RIAA as being a very important front for us to win on," Brown said, speaking for both Defective By Design and the FSF. "We're on the tipping point with these lawsuits. If we can put together a fund, it will encourage lawyers to participate in them."

Bruce Byfield is a course designer and instructor, and a computer journalist who writes regularly for NewsForge, Linux.com and IT Manager's Journal.

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