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Critical Setback for RIAA in NM
June 20, 2007
Thomas Mennecke
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The RIAA legal process has remained consistent since the “John Doe” concept was unveiled in June of 2003. Its investigation team downloads several files from an unsuspecting file-sharer and obtains the individual’s IP (Internet Protocol) address. From there, the RIAA subpoenas the ISP (Internet Service Provider) using the time/date stamp of the IP address. As the shaky theory goes, one should be able to identify the precise individual using that IP address at the time and date in question.

Where does the “John Doe” fit into this picture? He doesn’t. The individual doesn’t know the RIAA is subpoenaing his ISP for personally identifiable information until the dreaded lawsuit notice comes in the mail. The “John Doe” in question never knows the RIAA is subpoenaing his ISP because the RIAA uses an ex parte discovery application. According to Wikipedia, “…an ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.”

This has been a contentious issue within the realm of RIAA lawsuits. Critics have contended the RIAA uses this tactic to streamline the litigation process. If the “John Doe” in question has an opportunity to fight the subpoena before being identified, the music industry’s legal costs would rise dramatically, not to mention the possibility of losing. However, to this date, the RIAA’s motion to discover ex parte has yet to be denied – until today. According to Recording Industry vs The People, on May 24th Magistrate Judge Lorenzo F. Garcia has denied the RIAA’s application for discovery ex parte. The RIAA had requested the University of New Mexico hand over the identities of 16 students accused of unauthorized distribution.

“Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed,” Judge Lorenzo F. Garcia wrote. “While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian “suspension of disbelief” to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member’s Internet files can be equally harmful.”

Judge Garcia's concern stemmed from the fact that there’s no process that allows the accused to respond to a potential subpoena which reveals his or her identity. To remedy this, the Judge further dictated a set of protocols that both the RIAA and University of New Mexico must follow before a student’s identity is divulged. The most important of which, the student must have the opportunity to fight the subpoena.

“Accordingly, the Court directs Plaintiffs to contact University counsel, apprise the University that it is seeking discovery from the University, and attempt to agree on a fair and reasonable process that would allow Plaintiffs to identify limited information about the subscribers. If Plaintiffs and the University can agree on a process that includes prior notification to subscribers and a reasonable period of time to intervene or object, a proposed consent order should be submitted.”

Legal jargon aside, the news revealed today is monumental. Although it only affects those 16 students, it could set a nationwide precedent which in turn could seriously hinder the RIAA’s lawsuit machine.

The RIAA has a different perspective on today's events and has downplayed their significance. In a response to our queries, the RIAA pointed out that Judge Garcia's May directive isn't much different than their current notification process.

"We already encourage schools (and commercial ISPs) to give notice to subscribers," an RIAA spokesperson told Slyck.com. "We've said that for a long time. The court in this decision asked for a specific process, which we will accommodate. But in general, this is something - that is, giving notice - we definitely encourage all ISPs to do."


This story is filed in these Slyck News categories
File-Sharing/P2P Related :: Copyright Issues
Legal/Courtroom :: Court Rulings/Decisions
Entertainment Industry :: RIAA

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