In the Fight Over Piracy, a Rare Stand for Privacy
By ADAM LIPTAK
Published: December 31, 2007
The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.
The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.
Represented by the stateâs attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. Cary Sherman, the president of the Recording Industry Association of America, said the industry had seen âa lot of crazy stuffâ filed in response to its lawsuits and subpoenas. âBut coming from the office of an attorney general of a state?â Mr. Sherman asked, incredulous. âWe found it really surprising and disappointing.â
No one should shed tears for people who steal music and have to face the consequences. But it is nonetheless heartening to see a university decline to become the industryâs police officer and instead to defend the privacy of its students.
The recording industry may not be selling as much music these days, but it has built a pretty impressive and innovative litigation subsidiary.
In the past four years, record companies have sued tens of thousands of people for violating the copyright laws by sharing music on the Internet. The people it sues tend to settle, paying the industry a few thousand dollars rather than risking a potentially ruinous judgment by fighting in court.
âPeople get pushed into settlements,â said Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, a civil liberties group. âThe Oregon attorney general is showing what a real fight among equals would look like.â
In his filings, Mr. Myers claimed to be looking for a middle ground.
âCertainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,â Mr. Myers wrote last month. âHowever, that pursuit must be tempered by basic notions of privacy and due process.â
âThe larger issue,â Mr. Myers said, âis whether plaintiffsâ investigative and litigation strategies are appropriate.â
Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain âprivate, confidential information unrelated to copyright infringement.â He added that it may have violated an Oregon criminal law requiring investigators to be licensed.
A spokeswoman for MediaSentry said it collected only information that users of peer-to-peer networks make available to anyone who cared to look. She had no comment on the licensing law.
The record companies, in an apoplectic response in court, accused the university of having âa political agenda.â They said that it was protecting people who had broken the law and that it was not entitled to raise privacy and due process arguments on behalf of its students.
âHundreds of universities and dozens of commercial Internet service providers have responded to the exact same subpoenas,â the record companiesâ lawyers wrote.
James Gibson, a law professor at the University of Richmond, said Mr. Myersâs arguments had been raised in other cases and had met with little success. Still, Professor Gibson said, âitâs significant that a public university and its state apparatus is standing up to the R.I.A.A.â
Mr. Sherman, of the recording industry association, predicted that Mr. Myersâs motion would fail and said the industryâs litigation strategy had worked well.
âThe litigation program, as controversial as it is often written up to be, has been very successful in transforming public awareness,â Mr. Sherman said. âEverybody used to think this was legal. Now everybody knows itâs illegal.â
Indeed, the program seems to be expanding, and universities are being asked to play an even bigger role. In February, the association started asking universities to identify students suspected of file sharing and to pass along âprelitigation lettersâ to them. The association says it has provided some 4,000 such letters to more than 150 colleges and universities. The letters offer the students what they call bargain settlements of about $3,000 if they act fast, by punching in a credit card number at www.p2plawsuits.com.
âThe âreducedâ settlement amount, in other words, represents the record companiesâ savings from cutting out the middleman â our justice system,â the Electronic Frontier Foundation said in a recent report.
The universities are under no legal obligation to pass the letters along, but most do. Those that donât typically receive subpoenas like the one issued to the University of Oregon.
At least one other public university in Oregon has cooperated with the industry. In 2004, Portland State responded to a record industry subpoena by blandly and efficiently providing the names, addresses, phone numbers and goofy e-mail addresses of two roommates. The university said it could not say which studentâs computer was involved, so it fingered both of them.
âWe definitely felt betrayed,â said Karen Conway, the mother of one of the roommates. âThey readily turned over private information without notifying us. They placed responding to a legal subpoena far above a studentâs right to privacy.â
Though her daughter Delaney was blameless, the record companiesâ lawyers demanded $4,500. It was, Ms. Conway said, âbasically extortion,â and the family was forced to hire a lawyer. The case against Delaney Conway was eventually dropped. Her roommate settled.
Mr. Sherman said the University of Oregon should disclose what it knew and let the legal system sort out the rest. âItâs no different than us subpoenaing Verizon,â he said.
But an institution of higher education has different aspirations and obligations than an Internet service provider, which is why Portland Stateâs actions are so unsettling. The University of Oregonâs efforts may be doomed, but there is something bracing about them nonetheless.
All the university is saying, after all, is that the record industry must make its case in court before the university will point a finger at one of its own.