p2pnet.net news:- Efforts by EMI (Britain), Vivendi Universal (France), Sony BMG (Japan and Germany) and Warner Music (US) to use their RIAA to coerce American students into incriminating themselves are creating a storm of outrage.
However, it’s also an historic opportunity for you to take steps to make the RIAA’s itigation campaign more of a level playing field, says the Recording Industry vs The People’s Ray Beckerman in an open letter.
“Please be sure to pass this along to anyone who works in the administration or counsel’s office of a college or university whose students have been targeted by the RIAA,” he says, continuing:
Once the RIAA has obtained whatever “settlement” money it can squeeze from students and parents willing and able to pay the money, it will bring a “John Doe” proceeding. Contrary to the spirit of the Federal Rules of Civil Procedure, it will do everything it possibly can ex parte. It will file the complaint without notice to anyone, and submit the ex parte discovery order application without notice to anyone. Then, once it’s gotten an ex parte order signed by the judge, it will give minimal notice to you with minimal notice to your students.
Typically, “John Doe” will receive only a copy of a subpoena and a copy of the order with a letter from you, and will have just a few days, or at most a couple of weeks, to respond before his or her personal confidential information will be divulged. Meanwhile, if the student were to confer with a lawyer the lawyer doesn’t know what to say, because he or she has no copy of the underlying summons and complaint, no copy of the papers upon which the ex parte order is based, and no copy of the judge’s rules, all of which a defendant normally does receive in any normal litigation.
What you should, at a minimum, do for your students.
What you can do is insist that the RIAA stipulate with you that (a) any motion for an order granting discovery of the students’ identities will be on notice, both to you and the students, rather than ex parte, (b) that the RIAA must furnish to you, for each “John Doe”, a copy of the summons and complaint and exhibits, a full set of the motion papers, and a full set of all other court documents which are required to be served on the defendant when an action is initiated… for you to distribute to the affected students.
If the RIAA refuses to so stipulate, you should go to Court yourself and get an order requiring them to comply with these fundamentals which are required by due process.
What you should also do.
The courts have held that in order for a claimant to get an order for discovery of confidential names and addresses of a John Doe in a copyright infringement case, it must make a prima facie evidentiary showing that it has a case for copyright infringement against each “John Doe”.
Since the RIAA has been proceeding ex parte, however, and since they weren’t challenged by the ISP’s, judges have signed off on the orders even though supported by mere conclusory hearsay of suspect reliability. (Compare the courts of the Netherlands and Canada, where the ISP’s challenged the application for “John Doe” information, and the Courts refused to grant the discovery orders, due to the unreliability of the RIAA’s investigative “method”).
The lack of reliability of the RIAA’s “investigatory” technique is becoming more and more well documented. See, eg. the February 23, 2007, deposition of the RIAA’s expert.
See also expert witness statement of Prof. Pouwelse and Dr. Sips:
and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA’s “driftnet” litigation strategy:
Accordingly, we believe you should oppose the RIAA’s application for an order of discovery.
Likewise, if you learn of the RIAA obtaining such an order ex parte, you should move to vacate the order ex parte.
storm of outrage – The RIAA fights a hopeless war, March 8, 2007
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Tired of being treated like a criminal? They depend on you, not the other way around. Don’t buy their ‘product’. Do bug your local politicians. Use emails, snail-mail, phone calls, faxes, IM, stop them in the street, blog. And if you’re into organizing, organize petitions, organize demonstrations and then turn up on your local political rep’s doorstep, making sure you’ve contacted your local tv/radio station/newspaper in advance. Don’t just complain. Do something!