One of the latest skirmishes over file-sharing and copyright infringement on the Internet ended in a draw recently when a Boston College student settled out of court with the Recording Industry of America (RIAA). The student, who sought to preserve her right to be known as Jane Doe, filed a Motion to Quash that challenged the RIAA subpoena on a number of procedural and constitutional grounds and could have had implications for the Digital Millennium Copyright Act (DMCA). Doe challenged the subpoena from the RIAA to protect her identity and prevent possible liability for copyright infringement.
After successfully quashing a previous subpoena by the RIAA for improper venue, Boston College received a subpoena from the Massachusetts District Court on August 25, 2003 and notified Ms. Doe that she was one of three BC students whose identities were being requested by the RIAA. The subpoena was part of a larger campaign initiated this summer by the RIAA to stem the tide of peer-to-peer file sharing among Internet users. The trade organization claims peer-to-peer file sharing is defrauding its member companies of millions of dollars every year. The Federal Rules of Civil Procedure only allow a subpoena to be issued pursuant to a pending civil action. The subpoenaed party is then entitled to information about the investigation of which the subpoena is a part. Under § 512(h) of the DMCA, any copyright owner can subpoena the identity of an Internet user from their Internet Service Provider (ISP) by submitting to the clerk of a U.S. District Court a good faith statement asserting that the user is suspected of copyright infringement and a sworn declaration that the subpoena is intended to protect against that infringement. The DMCA, therefore, constitutes a significant relaxation of procedural requirements that has allowed the RIAA to subpoena information about a massive number of users in a very short period of time. In what one critic has referred to as a "blitzkrieg," the RIAA served more than 1,500 subpoenas during the summer of 2003 to ISPs seeking the names of users identified as potential file-sharers. This campaign resulted in the filing of 261 lawsuits in early September, some of which have already been settled.
Ms. Doe, who was represented by Boston law firm Prince, Lobel, Glovsky & Tye and the ACLU, alleged in her motion of September 26, 2003 that the subpoena violated her rights to privacy and due process, as well as the procedural guidelines set out in § 512(h). "We’re not saying the recording industry shouldn’t go after file-sharers, only that they must do so in a way that’s fair," said Christopher Hansen of the ACLU in a press release of September 29th.
In support of her claim of procedural deficiency, Doe pointed out that the subpoena failed to identify the copyrighted material that the RIAA claimed had been improperly shared as well as the owners of that material. In addition, Doe challenged the RIAA’s ability to issue an information subpoena based on files that she downloaded and stored on her personal computer. Doe argued that the DMCA subpoena provisions only applied to requests for user information related to unauthorized files stored on an ISP’s system. Echoing an argument posed by Verizon Communications, Inc. in a case now on appeal in the D.C. Circuit, she cited language in a previous subsection of the DMCA, § 512(c) that stipulates the procedure for serving ISPs with takedown notices. Doe argued that the language pertaining to takedown notices implies that a § 512(h) subpoena may only be issued when files are stored on the ISP’s system and are accessible to the ISP.
Doe also challenged the constitutionality of § 512(h)’s broad subpoena powers. She argued that, under Art. III, § 2 of the Constitution, a subpoena, as a form of judicial process, may not be issued absent a pending or future case. Although § 512(h) does require the subpoena to be accompanied by a good faith declaration of the complaining party that the targeted party is using copyrighted material in an unauthorized manner, the complainant is not required to declare that they intend to prosecute the targeted party in the future.
Finally, Doe alleged that the § 512(h) subpoena compromised her constitutional right to free expression on the Internet by failing to provide adequate procedural protections against unjustified invasions of her anonymity. Several courts have acknowledged the significance of anonymity in fostering free expression among Internet users. Doe argued that before she may be stripped of her anonymity on the Internet, she should receive notice of the RIAA’s compliant and have the opportunity to challenge it. A similar argument was rejected by the D.C. District Court in a second case involving Verizon on the grounds that the activities of Internet users were not entitled to the same degree of protection as speech that is political in nature because those activities were the subject of allegations of copyright infringement. Doe urged the Massachusetts Court to reconsider the validity of the D.C. Court’s findings, pointing out that no determination was made by the court as to whether she was, in fact, infringing upon the rights of the complaining party before that party was authorized to infringe upon her right to remain anonymous. Doe alleged that the relaxation of procedural requirements in § 512(h) has been "an invitation to mistake and misuse" and cited a number of cases where § 512(h) subpoenas have resulted in erroneous lawsuits.
The settlement, which was announced on October 23, came before Doe’s motion was decided, and it remains unclear whether she would have been successful. So far, Verizon has struck out twice with similar arguments in the D.C. circuit’s District Court. One of those cases is still on appeal. There is some reason to believe that Doe may have fared better in her suit however. Thanks to previous federal cases where the court identified user anonymity on the Internet as a crucial element in the medium’s ability to foster free speech, Doe was able to frame her procedural objections to the DMCA as a defense of First Amendment rights. In Doe v. 2theMart.com, the District Court of the Western District of Washington held that the procedural protections of traditional subpoena practice were rigidly enforced where First Amendment rights were at stake. In the absence of conflicting authority, the Massachusetts District Court might have been reluctant to allow the DMCA’s admittedly lax procedural requirements to stand. In the Verizon case currently on appeal, the District Court avoided the question. The court held that a subpoena issued by the clerk of the court was not, in fact, a judicial process within the scope of Article III’s due process protections, a conclusion that seems unlikely to stand, let alone be adopted by the Massachusetts District Court.
It is also unlikely that Doe’s motion to quash will be the last of its kind. The ACLU has indicated that they will resume their opposition with other plaintiffs in the future, and others are continuing to challenge the RIAA and its use of the DMCA. Verizon, who participated in the drafting of the legislation, has been to court twice in the last year to fight RIAA information subpoenas issued pursuant to the DMCA. Verizon is now working to overturn the legislation it lobbied Congress to enact.
The RIAA’s aggressive tactics have also garnered criticism from lawmakers on Capitol Hill. A bill was introduced earlier this month by Sen. Sam Brownback (R-Kan.) that would strip the power to issue subpoenas from the DMCA. Although the RIAA maintains that striking the powers of § 512(h) from the DMCA "is basically giving people the right to infringe with impunity," it has acknowledged the mounting criticism and has already shown signs of amending its tactics. In the latest round of subpoenas launched on October 17, users received a warning letter and an offer of amnesty with a 10-day expiration date before the commencement of litigation.
As for Jane Doe, her attorneys have indicated that her decision to settle was motivated by fatigue with the litigation process and a desire to focus on her studies at Boston College. Although the amount of the settlement was undisclosed, it was apparently consistent with others of its kind that the RIAA has reached recently, most of which have settled for under $5,000. Doe revealed her identity to the RIAA in the settlement process, but she did not have to admit or deny any wrongdoing with respect to the allegations of infringement.
Sources:
F.R.C.P. 45
Student at BC Settles with Music Industry by Chris Gaither
The Boston Globe, October 23, 2003
Citing Right to Anonymity Online, ACLU Asks Boston Court to Block Recording Industry Subponea
September 29, 2003
http://www.aclu.org/news/NewsPrint.cfm?ID=13802&c=251
64 Individuals Agree to Settlements in Copyright Infringement Cases
September 29, 2003
http://www.riaa.com/news/newsletter/092903.asp
Music Industry Sends Warnings On Alleged Piracy by Ethan Smith
The Wall Street Journal, October 20, 2003
Use of Subpoenas to Name File Sharers Criticized by Frank Ahrens
The Washington Post, September 30, 2003
Jane Doe’s Motion to Quash
September 26, 2003
http://www.aclu.org/Files/OpenFile.cfm?id=13790
Related Cases:
Columbia Insurance Company v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999)
Doe v. 2theMart.com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001)
In re Verizon Internet Services, Inc., 240 F. Supp. 2d 24 (D.D.C. 2003)
In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244 (D.D.C. 2003)
