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Group meeting time: Wednesday at 2:00 (some have classes ending at 2 and will go straight to the meeting afterwards).

Joel Tannenbaum

status conference order

order for conference september 23

rust to tennenbaum letter re deposition dates

Subject: Deposition dates
From: "Laurie Rust"
Date: Wed, September 3, 2008 4:29 pm
To: jesusina @bu.edu
Cc: "Newton, Claire"

Hi Joel,

I am following up on our telephone conversation of this afternoon. In that conversation, you said that you cannot make tomorrow's deposition because you have to work and you need more time in order to make arrangements to take time off of work. I reminded you that you did not show up to the properly noticed deposition, to which you had agreed and twice confirmed that you would attend, scheduled for August 28, 2008. Despite your failure to attend your properly noticed August 28, 2008 deposition and failure to contact us prior to the deposition to tell us you would not attend, I agreed to work with you on a new deposition date. You said that you could not make a deposition on Friday, Sept 5 or Tuesday, Sept 9. I asked you to agree to these dates because I will be in NYC on Monday, Sept 8 and would prefer to keep costs down. As you can imagine, your failure to attend your previous deposition resulted in substantial wasted costs. It would certainly be a show of good faith if you were to agree to one of these two alternate dates.

Regardless, you agreed to contact me by the close of business today and provide me with 5 dates on which you are available and agree to sit for your deposition, between Sept 5 and Sept 22.

Similarly, you said that your parents will not attend their depositions scheduled for Friday. You said that they need at least a month notice. I explained to you that this is not acceptable. Under the Federal Rules of Civil Procedure, two days notice is considered reasonable. However, I am willing to work with your parents.. You agreed to contact me by the close of business tomorrow and provide me five dates that your parents are available and agree to sit for their depositions, between Sept 5 and Sept 30.

You said that you would prefer to schedule your deposition on the same date as your parents. If you are all available between Sept 5 and Sept 22, I am happy to accommodate your request. Otherwise, we will have to schedule the depositions on separate dates. I have attempted to accommodate your schedule - I first called you on July 23rd and asked you if Aug 28 was an acceptable deposition date. I left you three voicemail messages on August 28, 2008, each asking for a return call. You did not return my call. Thus, I have been attempting to schedule your deposition for over a month.

Plaintiffs still intend to seek sanctions for what they believe is your willful failure to attend your August 28, 2008 deposition. If you do not contact me as agreed to above, we will simply add your refusal to cooperate to the motion for sanctions.

I look forward to hearing from you.


Laurie J. Rust
Holme Roberts & Owen LLP
1700 Lincoln St.
Suite 4100
Denver, CO 80203
(303) 866-0678

Thoughts on the deposition

The story of the deposition really began the previous day at the status hearing. The hearing was a success for us: the judge set an early trial date of December 1 against the wishes of Plaintiffs’ counsel. After the hearing, Plaintiff’s supervising attorney informed Prof. Nesson that he could only bring 2 students along with him to the deposition because they could not find a conference room large enough to accommodate more. She said it was absolutely impossible to get a larger room. I mentioned that the students won’t mind squeezing a bit, but she said “no, we can’t crowd the court reporter.” Notably, Plaintiffs’ deposition team would include 3, and at times 4, attorneys; apparently they were unwilling to afford Joel the same-sized team. In any event, Prof. Nesson and Plaintiff’s supervising attorney engaged in back and forth about this, until Prof. Nesson stated quite matter-of-factly “We are bringing 3.”

As a side note, Joel asked on the day of the hearing whether he needed to dress in a particular way for the deposition. Prof. Nesson said that ordinary clothes would be fine. Joel decided then and there that he would wear a Boston Red Sox t-shirt. It was meant to be his own small dig at Plaintiffs’ counsel: they were from Denver, and Joel was thinking about the Red Sox defeat over the Rockies in a recent World Series.

Our team met briefly the morning of the deposition. As promised, Joel was in his red sox t-shirt. Prof. Nesson’s chief advise to Joel was to be a “warrior:” You have your story, and you calmly and coolly state that story; you stay calm and focused at all times; you do not let them antagonize you or rush you or take you off your rhythm; you answer their questions with as few words as possible and by telling your story; nothing more; nothing less.

We arrived at local-counsel’s law offices and were shown to the conference room. I was expecting something small and cramped. The conference room was large enough to comfortably fit over a dozen people. The plaintiffs' lawyers at the deposition were: the case’s supervising attorney; a junior attorney; and plaintiffs' in-house counsel.

The supervising attorney took the deposition. Joel was apparently trying to really get into his “warrior” persona – he put on sun-glasses, maybe to keep them from seeing the whites of his eyes? She immediately began by asking Joel a litany of questions about how Prof. Nesson became involved in the case. For each question, Prof. Nesson asserted attny-client privilege. This happened for about a dozen questions; each time, plaintiffs asked Joel a question, he said “I’ve been instructed not to answer,” plaintiff asked Prof. Nesson if he was instructing Joel not to answer, and Prof. Nesson said “yes.” It was all quite repetitive, until Plaintiffs began asking about whether Joel reviewed documents with Prof. Nesson. Unsuprisingly, Prof. Nesson asserted privilege. In-house counsel asked to go off the record.

The in-house counsel stated that the questions they were asking were completely ordinary and routine, they are not subject to privilege, and he has never been in a deposition where privilege was asserted. He explained that the contents of the documents may be privileged, but not a description of the nature of the documents; parties are required to produce “privilege logs” all the time. He then implied that Prof. Nesson was out of touch with current legal practice because he was a professor and doesn’t take many depositions these days. Prof. Nesson responded by commenting on the bullying nature of the litigation: the record companies are inappropriately using bullying tactics against the public in general, and have been unnecessarily harsh in their dealings with Joel in particular. The in-house counsel replied by saying that he has quite different views on the matter: many people get laid-off every year because of lost sales due to file-sharing and that is who he was fighting for. With regards to Joel’s case, he stated that Plaintiffs have been extremely generous with him and have afforded him many courtesies because he was pro se. He noted that Joel was the one being unduly harsh when he filed two separate motions for sanctions. As evidence of Joel’s supposed disrespect, he pointed out: “Here is a kid who shows up in our office wearing a Red Sox T-shirt and sun glasses!” The decision was made to save that conversation for another day and continue the deposition.

Eventually, the line of questioning went towards inquiries about other people who used or may have used Joel’s Kazaa account on the family computer. One by one, Joel listed off family and friends who used the computer over the years and explained why he thinks they may have used Kazaa (e.g., “they are music fans;” “they burn CDs;” “they download things”). The questioning for each such person took about 15 minutes or more. After 4 of these iterations, I had to leave to get to my clinical. I’m very curious about what else happened and how the deposition ended.

more on deposition date


From: Laurie Rust <Laurie.Rust@hro.com>
Date: Fri, Sep 12, 2008 at 12:03 PM
To: nesson@gmail.com

Dear Prof. Nesson,

Again, it was a pleasure speaking with you yesterday. 

Below please find a bounce from the Court setting a status conference in this case for 9/23/08  at 3:30pm.  In light of the status conference, would you be amenable to changing the deposition date so that we don’t have to fly out twice in a week.  We are available Sept 23, 24, and 22, in that order of preference.  Please let me know.  I appreciate your cooperation.

Laurie J. Rust
Holme Roberts & Owen LLP
1700 Lincoln St.
Suite 4100
Denver, CO 80203
(303) 866-0678

From: Charles Nesson <nesson@gmail.com>
Date: Fri, Sep 12, 2008 at 1:00 PM
To: jesusina@buphy.bu.edu

fyi, and are these dates ok for you

when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

From: <jesusina@buphy.bu.edu>
Date: Fri, Sep 12, 2008 at 1:41 PM
To: Charles Nesson <nesson@gmail.com>

I can't do:

Sept 22: 2-5 or within a half hour for travel
Sept 24: after 6pm.

Otherwise, let me know what date is chosen.


> 1:03-cv-11661 <https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.pl?88039>
> *Filer:
> *  *Document Number:*
> 650<https://ecf.mad.uscourts.gov/doc1/09502749235?magic_num=81770553&de_seq_num=2486&caseid=88039>
> *Docket Text:*

From: Charles Nesson <nesson@gmail.com>
Date: Fri, Sep 12, 2008 at 2:27 PM
To: jesusina@buphy.bu.edu

good. i'm going to confer with our student associates, all of whom had cleared sept 18.


when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.


UNIVERSITY v. RIAA In fall 2007 the Recording Industry Association of America sent letters to about 700 colleges, announcing that it would soon let students accused of music piracy settle their claims out of court before it officially filed suit. In February the trade group made good on its promise: It sent batches of "pre-litigation notices" to 13 universities and asked those institutions to pass the messages along to students identified only by their Internet-protocol numbers. The notices direct recipients to a Web site and a telephone hotline to which they can pay lump sums ($3000) to record companies. Harvard is soon to decide whether this is a request with which it should comply.

All universities, Harvard among them, should decline RIAA's request. The mission of university is to preserve, create, and disseminate knowledge. When accomplishment of that mission meets conflict with values from other spheres, propriety demands civil resistance. Compliance with this request will distort university's mission.

The mission of Harvard College is:

Harvard College adheres to the purposes for which the Charter of 1650 was granted: "The advancement of all good literature, arts, and sciences; the advancement and education of youth in all manner of good literature, arts, and sciences; and all other necessary provisions that may conduce to the education of the ... youth of this country...."

In brief: Harvard strives to create knowledge, to open the minds of students to that knowledge, and to enable students to take best advantage of their educational opportunities.

Universities "pass along messages" that direct students to "pay lump sums to record companies," become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing due process, if in fact there is a criminal charge to be made.

University information officers should not accept the private sheriff's badges sent them by RIAA. Distinction between university and recording industry is worth preserving. RIAA response is disingenuous: "...we are not asking them to tell their students what to do--just to give us an opportunity to convey our message...." Message "conveyed" by the university become the university's message as well. The voluntary act of conveying RIAA's message implies an unhealthy convergence of industry and university norms. UNIVERSITY must resist if we are successfully to teach and practice true respect for learning and true understanding of law.

Here's a legal strategy of civil resistance to beat back RIAA.

Persuade the provost and general counsel of harvard to enable a Berkman Center clinical initiative to represent the university on motions to quash RIAA subpoenas in the John Doe law suits filed against our students. Allow us to train student lawyers in all of the arguments of legitimate resistance. Make RIAA litigate each one. Give our students practice and real experience. Give the judges of our federal courts opportunity to allow the process of justice to grind fine. The delay of process alone will cripple RIAA's enforcement campaign. If and when RIAA prevails on a motion to quash, the university complies with the subpoena but also makes the student aware of the Berkman Center's clinical program to assist students in their legal defense.

motion to quash subpoena

Motion to Quash

Upon receipt of a subpoenae the university may file with the court a motion to quash the subpoena. Quashing the subpoena would relieve the university of the obligation to appear or produce documents.

A motion to quash a subpoena must be made at or before the time specified in the subpoena for compliance. If the motion is made in writing, a copy must be served on the person who requested the subpoena in the manner provided for service of pleadings and other papers. A hearing is normally held on this motion, after notice to the person subpoenaed and the party who requested the subpoena.

The judge may quash or modify a subpoena under any of the following circumstances:

  • The subpoena is unreasonable or oppressive.
o For subpoenas to produce documentary evidence, the judge may require the person who requested the subpoena to pay the reasonable costs of producing the specified materials.
  • The subpoena was improperly issued, e.g. the subpoena fails to specify the time of appearance or the documents to be produced.
  • The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies.


what issues are open at trial can one prove what riaa is doing

perhaps they open the door with testimony about the extent of downloading

does jury decide the monetary fine are they required to award a minimum are there issues relevant to the damage assessment that would not otherwise come in on the merits

Interrogatory questions from Group 6: The Insanity of Banning Singing in the Shower:

1. Would Elvis have been the King of Soul if he hadn’t been allowed to sing in the shower?

2. Isn’t it true that restricting access to existing musical or written material stifles creativity by preventing the production of derivative works?

3. Isn’t it true that the underlying purpose of copyright statutes is to promote the production of creative material?

4. Isn’t it true that music and file sharing is an increasingly widespread phenomena, particularly among the millions of children/young people in the United States?

5. Isn’t it true that personal copying of cassette tapes did not destroy the music industry, despite its initial assertions that such copying would have this effect?

Jamie Thomas

RIAA Rips Defendant in Nation's First Downloading Jury Trial By David Kravets October 02, 2007 | 7:51:28 PM

DULUTH, Minnesota -- Is 30-year-old Jammie Thomas of Minnesota also a Kazaa user named Tereastarr, who allegedly downloaded and shared copyrighted music?

The Recording Industry Association of America says she is, making her liable for perhaps millions of dollars in damages in the first RIAA copyright case to go to trial. The recording industry lobbying arm first adopted its zero-tolerance piracy policy and began suing thousands on infringement allegations four years ago. The bulk of the cases have settled, been dismissed or are pending.

According to testimony here Tuesday, Tereastarr is the username that Thomas uses on Match.com, on her e-mail addresses, and on web site logins . The RIAA put on compelling evidence that the Tereastarr on the Kazaa filesharing network, who allegedly shared 1,700 digital music tracks, is also Thomas, a Native American single mother of two who works as an administrator at a nearby tribe here.

The RIAA's witnesses testified that the internet protocol address assigned to Thomas by her ISP the night of Feb. 21, 2005 was the source of the shared songs on the Kazaa network. The RIAA also put on evidence that the cable modem used that night was registered to her. Also, the username of Tereastarr was logged into Kazaa using that IP address and modem that evening, according to testimony. And the RIAA points out that Thomas had her computer hard drive replaced some time before turning it over in evidence.

"She gave that to us so our experts could inspect it," RIAA attorney Richard Gabriel told jurors.



-- Lauren Gelman Executive Director, Center for Internet and Society Lecturer in Law

Wired is liveblogging (practically) the case:


DULUTH, Minnesota -- Cary Sherman, the president of the Recording Industry Association of America, made the trip to Duluth for nothing. U.S. District Court judge Michael Davis ruled that Sherman can not testify in the trial of accused music-sharer Jammie Thomas.

"His testimony would not be relevant," Davis told industry attorney Richard Gabriel.

Gabriel argued that Sherman's testimony was necessary so the jury would understand why the RIAA is targeting people like Thomas with multi-million dollar lawsuits: for the deterrent effect.

"Lawsuits like this are not about making money," Gabriel told the judge. "It gets the word out ... We're serious about this even if the damages are small." -- Lauren Gelman Executive Director Center for Internet and Society Lecturer in Law Stanford Law School (ph) 650-724-3358 http://cyberlaw.stanford.edu/

declaratory judgment

BRYAN ASHLEY INTERNATIONAL, INC., a Florida corporation, Plaintiff, vs. SHELBY WILLIAMS INDUSTRIES, INC., a Delaware corporation, Defendant.


932 F. Supp. 290 (E.D.Fla. 1996)

I. Background

Both the plaintiff and the defendant sell furniture, including rattan and wicker items. By letter dated September 5, 1995, defense counsel warned the plaintiff of the plaintiff's alleged "misappropriation of [the defendant's] intellectual property" and demanded that the plaintiff "immediately cease and desist" from the alleged misappropriation [**2] or risk "disgorgement of profits improperly gained . . . as well as reimbursement to [the defendant] for attorneys' fees incurred." Complaint, at Exhibit A. On September 22, 1995, the plaintiff filed the instant declaratory judgment action.

In its complaint, the plaintiff seeks a declaration that it has not violated Title 17, United States Code, Section 501 ("the Copyright Act") or Title 15, United States Code, Section 1125(a) ("the Lanham Act") and has not engaged in any unfair competition precluded by Florida law. ...

A. Defendant's Rule 12(c) Motion

Pursuant to Title 28, United States Code, Section 2201, a declaratory judgment may issue only if there is an actual controversy between the parties before the court. GTE Directories Publishing Corp. v. Trimen America Inc., 67 F.3d 1563, 1567 (11th Cir. 1995). The defendant contends that no actual controversy exists because it has never asserted a claim for copyright infringement of its furniture designs.

To determine the existence of an actual controversy in patent litigation, courts apply a two-part test:

First, there must be an explicit threat or other action by the patentee, which creates a reasonable apprehension on the part of the declaratory plaintiff that it will face an infringement suit.
Second, the accused infringer or declaratory plaintiff must have actually produced or prepared to produce an allegedly infringing product.

Hewlett-Packard Co. v. Genrad, Inc., 882 F. Supp. 1141, 1156 (D.Mass. 1995)(citations omitted); see also Century Indus., Inc. v. Wenger Corp., 851 F. Supp. 1260, 1263 (S.D. Ind. 1994). This Court finds this test equally applicable in the context of copyright litigation.

In the instant action, the letter from defense counsel accusing the plaintiff of misappropriating the intellectual property of the defendant and demanding that the plaintiff cease and desist any further misappropriation amounts to action creating a "reasonable apprehension" of litigation, thus satisfying the first prong of the Hewlett-Packard test. Furthermore, the continued sale of the potentially "infringing products" satisfies the second prong of the test. See Flint Ink Corp. v. Brower, 845 F. Supp. 404, 407 (E.D. Mich. 1994)(patentee's letters charging infringement and demanding the cessation of such infringement, along with alleged infringer's denial of infringement, gave rise to actual controversy warranting issuance of declaratory judgment) The Court further notes that the defendant has acknowledged that "a justiciable controversy exists between the parties with respect to the right of [the plaintiff] to continue selling its accused furniture designs under threat of litigation." Answer, at P 10. Therefore, the plaintiff has sufficiently demonstrated the existence of an actual controversy.

Cary Sherman Q&A

Inside the Recording Industry's New Antipiracy Campaign Thursday, April 12, at 12 noon, U.S. Eastern Time Last fall the Recording Industry Association of America sent letters to about 700 colleges, announcing that it would soon let students accused of music piracy settle their claims out of court before it officially filed suit. In February the trade group made good on its promise: It sent batches of "pre-litigation notices" to 13 universities and asked those institutions to pass the messages along to students identified only by their Internet-protocol numbers. The notices direct recipients to a Web site and a telephone hotline to which they can pay lump sums to record companies. Now that the trade group is making a monthly practice of sending the pre-litigation letters, many college administrators are wondering if they should forward the messages to their students, as recording-industry officials have asked. Cary H. Sherman, the association's president, will answer your questions about the recording industry's new antipiracy endeavor and about its continuing fight to curtail illegal downloading over campus networks.

The newest postings appear at the top of the page.

Dan Carnevale (Moderator):

That's all the time we have for today's chat. Sorry we could not get to everyone's question. Thanks again to Cary Sherman for his answers. If you would like to continue the discussion, please visit the Chronicle Forums to carry on the conversation there.

And join us next week, when our Brown Bag guest will be David Wippman, Cornell's vice provost for international relations, who will discuss the internationalization of universities.

Cary H. Sherman:

You've asked a whole lot of really good questions -- thoughtful, cogent, articulate. That's what makes this such an interesting issue to address, because there are so many ways to look at it. At bottom, though, we hope that higher ed will look at this as an opportunity to communicate important values to students. Universities probably create more intellectual capital than the rest of the economy. They have a huge stake in ensuring that intellectual property is valued. Your students are almost certain to work in an intellectual-property-related industry, rather than manufacturing. Our future depends on our intellectual property being respected, not just in the US, but in China and Korea and everywhere else. We need to start teaching those lessons at home, now.

Thanks for listening, and thanks for participating.

Question from University of Free Speech:

Your recent emphasis on file sharing internal to campuses leads one to ask why not allow this type of sharing to be freed in return for a compulsory licensing fee? That would be a legitimate exchange which would benefit both sides in this situation. Students could share among themselves, which would provide a wider audience for your product while still compensating you somewhat.

Cary H. Sherman:

This requires a longer answer than I can reasonably type. But very quickly:

Almost all copyright owners dislike compulsory licensing schemes, because government regulation has never outperformed the marketplace in terms of economic efficiency. This is especially true for a medium like the internet, which changes every few months and assumptions and decisions made before will have to be changed on the fly. Government regulatory decisions are usually years out of date by the time they are made.

Furthermore, a compulsory license for music would invite a compulsory license for all cultural works that can be digitized -- movies, software, videogames, books. After all, if you can't control piracy of music, isn't that also true of movies and other content that can be digitized? Would you really want the government to regulate the price that is paid for the entire cultural output of the United States? And would you want the government to decide how the money should be allocated? (Hint: I predict Eminem wouldn't get as much as the marketplace pays him now.)

And what about the international implications? Everyone in the rest of the world would take our music for free while taxpayers in the US pay a compulsory license fee? And how much would it be? I assure you it wouldn't be as much as the marketplace pays.

Question from Jeff, liberal arts college:

You write "So our letters will be both DMCA notices and 'preservation of evidence' notices, which ask students to discontinue the infringing activity but to preserve the evidence of prior actions. " We have different obligations under 512(a) and 512(c), particulaly since most of the p2p content doesn't reside on our servers but on individual computers. Can you clarify what you expect our action to be in relation to each of these sections of the law?

Cary H. Sherman:

I'd be happy to have our General Counsel get in touch with you to respond to your legal questions. Please feel free to give us a call.

Question from Dan Coates, SurveyU.com (survey researcher):

When students are asked, they feel that current laws are not in step with culture and technology. Does the recording industry see any downside to prosecuting an activity that practically every college student (98%) has done at some point?

Long term, is this good for business?

Cary H. Sherman:

The attitudes you describe are among the most difficult challenges we face, and we understand that. Hopefully, as students become more aware of the value of intellectual property -- maybe when they create their own and begin to understand what it feels like when somebody takes it without permission or compensation -- they will begin to feel otherwise. (One clever grade school program has students in a class create a musical recording, and then another student takes it and hands it in for credit. What an interesting way to teach kids the value of intellectual property.)

No question, this is a long-term issue that will take years of effort. And new business models are emerging every day that may make this issue less relevant (we hope!). But no matter how the business models may evolve, they will still require a fundamental respect for the property rights of others to work. And at bottom, the program we're pursuing is teaching that property rights have value and need to be respected.

Question from Jeff, liberal arts college:

We find our students arrive with habits already well-developed regarding use of email, file sharing, web access, et al. Doesn't the educational (culture shift) need to be targeted in new or different ways that caters to the teenage culture, as much as to college students? How are RIAA and other agencies getting the message out to that younger age group?

Cary H. Sherman:

A very good point. Universities have inherited this problem, they haven't caused it. And that's why we've initiated a number of educational programs for grades 3-6, 6-8 and high schools (in addition to universities). For example, the Close-Up Foundation has added the issue of illegal file-sharing to its annual publication of educational issues, and that's a great opportunity for students to think critically about the impact of what they're doing. And Close-Up does a wonderful job in presenting all facets of the issue (fair use, etc.). Another program is iSafe, which is a nationally recognized Internet safety program in schools across the country. They've added intellectual property to their curriculum, because it goes to the rights and wrongs of Internet use.

Question from Robyn, Washington, D.C.:

Why in general is targeting universities so important that all of these initiatives are being taken? Also, how is the RIAA able to find all of these individual students to send notices to? Thanks!

Cary H. Sherman:

We find these students the same way any other member of the public would find them -- by going on the internet in search of illegal downloads. And we're focusing on universities for all the reasons previously explained in answers to earlier questions.

Question from University of Free Speech:

The RIAA is targeting college students, who are very unlikely to have the wherewithal to mount a legal defense. Aren't you cherry-picking easy settlements to bolster the image of these suits, given the recent legal defeats you've suffered trying to sue grown-ups?

In the end, these suits are a simple money grab -- to the tune of $100 million so far?

And please explain the rationale behind pursuing people sharing music deliberately leaked by the band Nine Inch Nails at their concerts to promote an upcoming album.

Cary H. Sherman:

First, there is hardly a money grab. This program COSTS us money; it's not a profit center. But we do it because we need to create risk for stealing music. I don't know where your $100 million figure came from, but it is totally imaginary.

We're targeting college students because they account for an undue percentage of the problem. Also, the habits they form in college will be with them for a lifetime. They have as much wherewithal to mount a legal defense as anyone else, maybe more. There are lots of attorneys who defend these cases pro bono, and that's just fine.

I don't know why you think we've suffered legal defeats recently. There have been some cases involving dismissals of the original defendants as we amend the complaint to name the responsible party in the household (generally one of the kids or a friend), but those are not defeats, those are the judicial system at work.

Question from Jonathan Curtiss:

Are RIAA pre-litigation letters to be considered DMCA cease and desist notices?

Cary H. Sherman:

This is an interesting question, and it has been raised with us by counsel at a couple of universities. We believe that the pre-litigation letters can be considered DMCA notices, but to avoid any doubt, we are going to revise the letters going forward so that this is more clear. Obviously, we want the infringement to stop when we send the pre-litigation letter. But we also want the evidence of the infringement to be preserved, so that it is available as evidence in the lawsuit. So our letters will be both DMCA notices and "preservation of evidence" notices, which ask students to discontinue the infringing activity but to preserve the evidence of prior actions.

Question from Dan Carnevale:

The University of Nebraska at Lincoln made headlines when it tried sending the RIAA a bill, citing processing costs for all of the copyright-infringement notices the trade group had sent to the institution. I'm assuming you won't be paying that, but it does raise an important question: Should colleges be responsible for the cost of tracking down file-sharing students?

Cary H. Sherman:

Universities sought, and obtained, the protection of the Digital Millennium Copyright Act when it was enacted in 1998. Universities are treated as "ISPs" under that legislation. That gives them numerous safe harbors from possible copyright liability, but it also gives them certain legal obligations. One of those obligations is to take action to eliminate infringement when they become aware of it.

We go to a great deal of trouble and expense to identify infringement taking place, and it doesn't seem unreasonable to ask universities to do their part -- the part contemplated in legislation they supported -- to eliminate the infringement. And that's separate and apart from the obligations as educators to instill values in their students that will prepare them for the real world once they graduate.

Question from Casey Green, The Campus Computing Project:

The RIAA has engaged in an aggressive media and Congressional campaign targeting colleges and college students when ample evidence confirms that consumer ISPs (for example AT&T, Comcast, TimeWarner and Verizon, among others) play a much larger role as conduits for illegal P2P traffic. For example, fully 94 percent of RIAA's 8400 "John Doe" legal filings in 2004-05 were NOT college students.

Why has the RIAA avoided pursuing consumer ISP for their role P2P traffic? Why does the RIAA believe that colleges and universities should be held to a higher standard when ample evidence confirms that colleges are far more responsible about intellectual property and P2P issues than consumer ISPs?

Cary H. Sherman:

We have asked consumer ISPs to pass along infringement notices to their customers, and those requests are still being considered. And a number of large commercial ISPs have sent educational messages to their subscribers. But let's face it -- an ISP has a fundamentally different relationship with its customer than a university with its students. Universities aren't mere providers of network services -- they are educators who provide network access as part of an educational mission.

Moreover, we're finding that the problem of illegal downloading is more prevalent on college campuses than the rest of the population. More than half of college students surveyed said that they download movies and music illegally. and 2/3 of the music acquired by college students was obtained illegally. College students have always been an incredibly important demographic -- they were the biggest music fans, and the biggest music buyers. They're probably still the biggest fans, but their among the smallest buyers of music. Music acquisition is up, but payment is down.

Dan Carnevale (Moderator):

We're about half way through the chat. Keep those questions coming.

Question from Middle Tennessee State University:

P2P file sharing has "substantial non-infringing uses" that today's music business students must be free to explore. The RIAA's campaign of lawsuits and pressure on higher education is overbroad. Where does Mr. Sherman expect the next generation of industry leaders to come from if they do not have unfettered access to the technologies impacting the industry today?

Cary H. Sherman:

Unfettered access to technology is valuable, but that doesn't equate with unfettered right to steal. Of all people, music business students should understand the need for creators of music to be compensated, or else there is no business for them to join.

There has never been a worse time to get into the music business than right now. Songwriters in Nashville are at half the level they used to be, and their royalties are too. The "For sale" and "For rent" signs on Music Row tell the story. Music business students need to set an example of what is appropriate behavior online.

Question from Dan Carnevale:

And are students who get the notices actually choosing to settle out-of-court?

Cary H. Sherman:

So far, 198 students have settled from the first round of pre-lawsuit letters. Obviously, many students are choosing to settle rather than face a lawsuit. We think that speaks to the clarity of the law and students' understanding that they've been caught in a clear case of infringement. Hopefully, other students will get the message that illegal downloading carries real risks.

Question from Dan Carnevale:

Are most colleges choosing to pass the pre-litigation notices on to students?

Cary H. Sherman:

To date, virtually all colleges have chosen to pass along the pre-litigation letters. One school has publicly declined to do so. Frankly, it seems to me that a school is not doing its students a favor when it deliberately withholds information that that student may want, and denies its students the opportunity to decide for themselves how to handle an impending lawsuit.

Question from Lewis Hyde, Berkman Center, Harvard Law School:

The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

Sharing files over the internet is not illegal per se; that depends on what's in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

If colleges "pass along messages" that direct students to "pay lump sums to record companies," colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.

For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?

Cary H. Sherman:

Lots of questions in here, but let me try to respond generally. First, we do not ask colleges to police their students. But we do expect colleges to be proactive in educating their students about illegal downloading, about their network "acceptable use" policies, in enforcing their policies and the law when violations are brought to their attention, and in offering legitimate alternatives so students can get music legally rather than illegally. We also believe that colleges should consider technical measures to impede illegal use of campus networks, by filtering out infringing transmissions. This would benefit colleges by preserving their bandwidth for legitimate academic purposes (especially important when estimates of illegal use go as high as 90% of availabe bandwidth), and it would send the right message to students that illegal behavior is not acceptable. There are many schools that use technical meaures to ferret out plagiarism -- why should they use technical measures to at least inhibit illegal downloading?

You say that sharing files over the Internet is not illegal per se, and this is of course true. But a "filter" (such as that marketed by Audible Magic" would only prevent illegal transmissions and nothing else.

As for asking colleges to pass along messages, we are not asking them to tell their students what to do -- just to give us an opportunity to convey our message to their students directly, leaving it up to the student how to proceed. A university can encourage students to retain counsel, or even provide counsel, to advise on whether the student's behavior might qualify as fair use. But let's be honest -- every court that has looked at the fair use question in the context of illegal downloading has concluded that the doctrine doesn't apply, and it's going to be a very exceptional case where it does. It's a little misleading to suggest to students that downloading entire copies of songs may be a fair use.

Final point: Sure, the industry and colleges are distinct institutions (law enforcement isn't really relevant here because there haven't been criminal proceedings for p2p on college campuses at this point). But that doesn't mean they don't share a common interest in teaching that music, movies, academic writings and all other forms of intellectual property have value and that it's both illegal and immoral to take it without paying for it.

Cary H. Sherman:

Before turning to the first question, let me take the opportunity to thank you for allowing me to talk with you about an issue that is critical to us, and to answer the questions you may have.

We understand how difficult this issue is for college administrators. And we truly respect the values that universities bring to this debate, and their desire to balance their role as educators with the freedom of their students to learn for themselves. Our companies HAVE transformed how they do business, making available everything they possibly can on as many platforms as possible. But we are still suffering from a pervasive mindset that "if it's online and available, it's free for the taking." That mindset is damaging not just to us, but to countless others who want to build legitimate businesses online. And it devalues not just music, but intellectual property generally -- and it is intellectual property that is the basis for our economic future as a nation. I truly believe that teaching cyber-ethics is a critical role for universities to play in the 21st century, and the prevalence of illegal downloading on college campuses is an ideal "teachable moment." The only question is how it's going to be taught.

Dan Carnevale (Moderator):

Welcome to today's Brown Bag. The file-sharing issue has been a hot topic for years, and I'd like to thank Cary Sherman for taking the time today to answer your questions and respond to your concerns.

Without further delay, let's get started.

harvard charter of 1650

WHEREAS, through the good hand of God, many well devoted persons have been, and daily are moved, and stirred up, to give and bestow, sundry gifts, legacies, lands, and revenues for the advancement of all good literature, arts, and sciences in Harvard College, in Cambridge in the County of Middlesex, and to the maintenance of the President and Fellows, and for all accommodations of buildings, and all other necessary provisions, that may conduce to the education of the English and Indian youth of this country, in knowledge and godliness: ...

Universities to RIAA: Take a Hike

by Charles Nesson & John Palfrey

Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a "passive conduit" for students downloading music. We agree. Harvard and the 22 universities to which the RIAA has sent "pre-litigation notices" ought to take strong, direct action...and tell the RIAA to take a hike.

This Spring, 1,200 pre-litigation letters arrived unannounced at universities across the country. The RIAA promises more will follow. These letters tell the university which students the RIAA plans on suing, identifying the students only by their IP addresses, the "license plates" of Internet connections. Because the RIAA does not know the names behind the IP addresses, the letters ask the universities to deliver the notices to the proper students, rather than relying upon the ordinary legal mechanisms.

Universities should have no part in this extraordinary process. The RIAA's charter is to promote the financial interests of its corporate members – even if that means preserving an obsolete business model for its members. The university's charter is quite different. Harvard's charter reflects the purposes for which it was founded in 1636: "The advancement of all good literature, arts, and sciences; the advancement and education of youth in all manner of good literature, arts, and sciences; and all other necessary provisions that may conduce to the education of the ... youth of this country...."

The university strives to create knowledge, to open the minds of students to that knowledge, and to enable students to take best advantage of their educational opportunities. The university has no legal obligation to deliver the RIAA's messages. It should do so only if it believes that's consonant with the university's mission.

We believe it is not.

Universities are special places, set off in time and space for students to have an opportunity most will not again have: to learn together in a community that cherishes openness above all else. If the university is perceived as doing the bidding of any particular industry, the message we’re sending to students is that the university is willing to let commercial interests intrude.

Of course there are times when that intrusion is warranted. The horror of Virginia Tech is on all our minds and in our hearts. There are far lesser justifications for allowing the arms of government and commerce to interrupt the secular sanctity of the university's educational space. But protecting claims of copyright – whether or not legitimate claims – by passing along messages requiring students to pay lump sums to record companies just doesn't warrant the betrayal of student's trust and privacy.

The university does have an obligation to teach our students to be good citizens. Good citizens should be accountable for their actions. If our students are breaking the law, they should pay the price. That’s not the issue here. The RIAA has already sued well over 10,000 people, including many students, directly. They seem to be engaging in a classic tactic of the bully facing someone much weaker: threatening such dire consequences that the students settle without the issue going to court. The issue is that the university should not be carrying the industry’s water in bringing lawsuits.

The subtitle of the RIAA's own press release puts a far more pleasant gloss on this: "New Program Invigorates Campus Conversations About Consequences For Illegal Downloading."

If the RIAA wants to stimulate conversation, then it should engage in genuine dialogue. Come join us on campus. Come talk to the digital natives who are our students, to the faculty who care about fair intellectual property protections, and to the university counsel and technical teams who manage our strategies and operations in cyberspace. The RIAA should be asking, along with the rest of us, if we can come up with models that reward artists for their work while allowing the maximum circulation and use of their creations, as our Founding Fathers intended.

We should also be discussing the most important issue of all. Universities provide an open space in which every idea can be heard and discussed. Every limitation on the circulation of ideas works directly against the university's mission. How can we open up more ideas, more works, more conversations, while, of course, preserving the legitimate rights of creators? How can we make the university far more open than it is now? How can universities – just like the RIAA – embrace a digital future and make the most of its opportunities?

Being the unpaid enforcement arm of the provincial interests of the RIAA is no part of the answer to these questions.

About Charles Nesson: http://cyber.law.harvard.edu/home/charles_nesson

About John Palfrey: http://cyber.law.harvard.edu/home/john_palfrey

The RIAA vs. John Doe, a layperson's guide to filesharing lawsuits

The RIAA lawsuits pit a very few, very large record labels (sometimes referred to as "The Big Four") against average people who are customers of an Internet Service Provider. These average people are also mothers, grandmothers, dialysis patients and university students. In some cases they're even deceased. In one very highly publicized case, the person was actually not-very average at all; they didn't even own a computer.

The RIAA does not involve musicians in the lawsuits it files. For example, if you're sued for the alleged swapping of a song by Puff Daddy, Sean "P. Diddy" Combs name isn't on the lawsuit in the place where it says "Plaintiff". The Plaintiff in these cases are one or more of the very large record labels or their subsidiaries that are members of the RIAA (i.e. Warner Music Group, Sony BMG, etc).

The person being sued may have never shared a file, or logged on to a P2P network. They haven't been convicted of any crime involving copyright protected material, nor have they been charged with one. They've simply been sued in a "civil" action. In the United States, anyone can sue anyone else for anything at any time. It's quite possible (and maybe even more likely than not) that these average people didn't violate anyone's copyright.

In any event, the burden of proof for a civil suit is much lower than that of a criminal prosecution. There is no possible way that anyone who has been sued by the RIAA could be convicted of any crime with the evidence the RIAA collects.

In fact, to clear up a point of media confusion, often the defendants in these suits are incorrectly referred to as "downloaders". In actuality the RIAA has no ability to show, and has done no investigation to prove that anyone downloaded anything at all.

So, what is the RIAA suing these people for, if not for downloading music? This is where things get just a tad bit technical, but hang with me and I'll try to explain.

How the RIAA identifies the people they sue

First, a techie, working on behalf of the RIAA, searches a peer to peer network for say, "Avril Levine" just like any other P2P user would. Search results are returned, and the techie then sifts through them and focuses in on a single "file".

The "file" in question may have the name "Avril Levine - Sk8r Boi.mp3", and in many cases on P2P networks, there may be several files that carry that same file name. I should point out, just because a file has the name "Avril Levine - Sk8r Boi.mp3", that it's just a name. I could rename "resume-Grant_Robertson.doc" to "Avril Levine - Sk8r Boi.mp3" and, unless you downloaded and listened to the file with an Mp3 player, you'd never know.

As Rumsfeld Carl Sagan put it, "absence of proof is not proof of absence." The RIAA holds fast to that philosophy; when they present evidence to the court, they don't play the judge the song they claim you downloaded. The RIAA only shows the judge a screen capture of the filename, along with a username from the peer to peer network

The techie, working on behalf of the RIAA, uses another program -- separate from the P2P software -- to find the Internet address (IP address) from which it appears the file they've searched for can be downloaded. They take a screenshot of the peer to peer software on the techie's computer, with the peer to peer "username" and the filename they searched for, and they attempt to link the "username" to the IP address.

This is where the investigation portion of the RIAA's campaign ends, and the lawsuit portion begins. If you're a really sharp reader you may be asking yourself how the RIAA can sue an IP address, or a peer to peer "username" in a court of law. Well, the short answer is, they can't. Don't worry, the RIAA has very smart, very well paid lawyers who have figured out a way around that problem.

The Lawsuit Begins

The RIAA sues "John Doe" in state court. They can't sue in the state court of the person who is paying for Internet access (and therefore, the IP address), because at this point they aren't even sure in what state that IP address might be. Instead they sue John Doe in the state where the Internet Service Provider's main offices are located. In most cases, this isn't the state where the IP address (or John Doe) lives.

This is a legal gray area. In most cases the RIAA lawyers know that the IP address (and therefore John Doe) isn't in the state in which they are filing suit. That means John Doe isn't actually subject to the laws of the state in which they've been sued (after all, I can't sue you in New Jersey for something you did in Florida when I'm in California.. it just doesn't work that way). That being the case, John Doe has no real way to argue that he isn't subject to the laws of the state in which he's been sued (John Doe doesn't even know he's been sued yet.. in fact, no one knows who John is yet)

The RIAA doesn't just sue one "John Doe" at a time. They instead sue hundreds of John Does at a time, all at the same ISP. This is another legal gray area, because under the "Federal Rules of Civil Procedure", there is no reason to sue all these separate people in the same lawsuit. If the courts required the RIAA to adhere to the letter of the law, they would be forced to sue each John Doe individually, which would greatly increase the amount of effort and paperwork required. Unfortunately, most ISP's can't waste the time and resources that it would require to argue against the way the RIAA is suing their customers. Since the ISP can't argue on behalf of "John Doe", the RIAA wins this stage.

John Doe gets a letter from his ISP, along with paperwork from the court case against him. The paperwork tells him (in legal speak, and -- in many cases -- in a way he does not understand) that a legal order has already been granted against him. So, instead of getting a letter telling John Doe that he needs to do something to protect himself in the courts, John Doe is sent a letter stating he is no longer protected.

At this point, John Doe isn't even given documents that brought this whole process to bare. These documents include:

the summons and complaint the order that was filed without John's knowledge the court rules needed to defend himself So, John Doe now knows he's being sued, or at least that something is rotten in Denmark. What john doesn't know is what the case is about, what the RIAA is basing the case on, or why the court has already ruled against him.

Regardless, John is given days to file a motion to stop the subpoena of his account information. John's not a lawyer, but he needs one, fast! Unfortunately he won't be able to tell the lawyer what he needs to do. Lawyers are smart, but they aren't magic. A lawyer can't make an informed decision about a clients' case unless he has all the facts. Because the ISP has only informed John that he's lost some sort of motion to discover who he is, John's lawyer doesn't have the information about why he's lost the motion, or what they told the court John did.

John's lawyer is at a disadvantage. In many cases, the time John has to defend against the court order is lost in trying to figure out what any of this mess is about. Unless John's lawyer is aware of the tactics the RIAA uses to keep the defendant's lawyer on his toes, John's lawyer is really unable to tell John what is the smartest thing to do. Lawyers went to law school; when they give advice, they don't give it half-assed. TA lawyer will either tell you what they are sure of, or they tell you they aren't sure. In this case, John's lawyer isn't sure, so he can't tell John what to do.

What's maybe even worse is, if John's lawyer could figure out what has already happened, he'd need to file a motion to dismiss the order. John's lawyer would be happy to do that, and it's likely that his motion would win, and the whole thing would stop right here because, let's face it, the evidence the RIAA has against John is really, really flimsy. Unfortunately John's lawyer probably can't. Lawyers are given the ability to practice law state by state. To practice law in all US states, John's lawyer would have to take 50 bar exams and keep up with 50 states worth of ongoing requirements to practice law. Most lawyers are only admitted to practice in a handful of states, and in the case of really expensive lawyers, in federal jurisdictions and maybe in front of the Supreme Court. John's lawyer would have to refer John to a lawyer that can practice in the state his ISP's main offices are in, and that takes time.

If you can't defend yourself in court, you lose. Remember that time that your friend decided to show up in court to contest that speeding ticket? The Police Officer who wrote your friend the ticket didn't show and, your friend walked away victorious. Tthe judge threw that ticket right out the window. The same thing happens to the RIAA when John doesn't show up for court. The judge does the only thing he can do under the law, he rules against John because John didn't show up to defend himself.

Homer Simpson once said "The two sweetest words in the English language.. De Fault". John probably doesn't agree with Homer Simpson on that one, but the RIAA lawyers do.

The RIAA asks the court for "immediate discovery" but, John still isn't in court. Typically in the US justice system if one party in a trial asks the court for something the other party has to be made aware that they've asked. That gives both sides an equal opportunity to argue in front of a judge over whether the motion should or should not be granted. Once upon a time it was rare that the court would grant a motion without the defendant present (or "ex parte"), now it seems to be regular practice to grant "ex parte" discovery orders, which puts John (once again) at a big disadvantage.

For what it's worth, courts in both Canada and the Netherlands have routinely balked at this stage in similar cases. They've refused to grant the motion that would allow the RIAA to find out who John Doe is, stopping the RIAA (or the IFPI) dead in its tracks. In both countries the courts claimed that the information presented to them is way too flimsy to warrant extreme action like making the private account information of John Doe a public matter.

John probably wishes he was in one of those two countries right about now. The judge grants the RIAA's motion for "immediate discovery", which, in English, means that the RIAA can subpoena the ISP for John's account information. The subpoena is legally binding, and unless the ISP wants to fight each subpoena individually (which is crazy.. and would cost millions when dealing with hundreds at a time) the ISP has to give the RIAA all the information they have on John Doe.

What the RIAA does isn't illegal, but it does exploit the law to its edges to take advantage of the courts and the ISP. Nevertheless, the RIAA now has the information it needs.

The RIAA, now having our John Doe's real name and address, drops its suit against John Doe.

Since the case has been dropped, there is no appeal. No other judge gets a crack at interpreting the questionable tactics and strategy that the RIAA used to win the motion.

Where one lawsuit ends, John's trouble begins in earnest. The RIAA now knows who he is, and where he lives. They don't send two jackbooted thugs to John Doe's house in the night to make a "point". That would be far too brutish and, as a society we've mostly grown beyond bashing each other with sacks of oranges in the middle of the night and running away. The RIAA uses the modern equivalent of the midnight raid; the settlement offer.

The RIAA Settlement Offer

The RIAA drops a U.S. postal stamp on John Doe and sends him a settlement demand. Two people can enter into just about any contract for any purpose in the United States (well, unless they're gay and want to marry.. but that's for another time) and the RIAA asks John to enter into a contract with them.

The contract states that the RIAA won't sue John, which is pretty attractive when you're John Doe facing all the legal might the multi-billion dollar recording industry can muster. We don't hold people at gun point (or hit them with bags of oranges in the middle of the night), we hold them at the point of a lawsuit.

The contract, that same one that says that the RIAA won't sue John if he signs it, says John agrees that the RIAA is right when it says he owes them $3,750. It also says that the RIAA doesn't plan to negotiate with John, and contains several one-sided provisions that place restrictions on John and what he can do if he wants to keep from being sued while not placing any restrictions on the RIAA and what it can do. The contract also says that John agrees that peer to peer filesharing is copyright infringement (which isn't actually true.. sharing copyrighted files is copyright infringement, but there are other uses for peer to peer filesharing that aren't infringing).

The settlement contract also doesn't keep John from being sued by other interested parties. Remember when we told you that if you were sued for sharing Puff Daddy that Sean Combs wasn't the Plaintiff? Well, when you sign the settlement, you agree that you did what the RIAA says you did. If the artist wants to sue you next, they still can. The RIAA settlement makes it clear that they aren't protecting (indemnifying) you against other lawsuits.

So, John can give the multi-billion dollar recording industry and its team of lawyers almost $4000 and they'll go away. Four thousand dollars is a used car, and not a very nice used car at that. On the other hand, if John doesn't settle, and if the RIAA takes him to court and wins, they could get as much as $750 per song. The list of songs they say John shared is really long, and at $750 each it's way more than that $3750 they're asking for. Plus, if John loses his court case He'll still have to pay his lawyer, plus pay the RIAA, and maybe even pay the RIAA's enormous legal fees.

You begin to understand why most people, when presented with an RIAA lawsuit, just settle. Losing a legal fight with the RIAA could mean John loses his house, his retirement, his kids college fund, everything he has worked for. Winning will probably still be more expensive than settling, unless John can get the court to force the RIAA to pay his legal fees when he beats them.

Beating the RIAA would be really sweet. But, it's a big gamble if John doesn't. What happens if John refuses to settle (or just doesn't respond)?

What Happens When The RIAA Files Suit After Offering A Settlement

John says, "No deal" and the RIAA says, "See you in court". The RIAA sues John in the district where he lives.

When the RIAA files the complaint against John, it's just a boilerplate filesharing complaint they use every time someone fails to settle with them. They don't customize each one, which makes this a cookie cutter process for them. They simply go back to the start of this process, subpoena hundreds more names, and send out new settlement letters.

The complaint accuses John of "downloading, distributing, and/or making available for distribution". The RIAA also attaches to the complaint two lists of files they accuse you of sharing. The long list, "Exhibit B" contains, in essence, a list of every possible thing they think you might have even been capable of sharing at the time. This is the same list they sent you when the settlement offer was given. The short list, "Exhibit A" is a list of files they will ask for damages for. The RIAA is claiming that these files were shared via an IP address that, when subpoenaed, the ISP mapped to your Internet connection.

What the complaint doesn't contain is any detail on how, when or where the alleged copyright infringement took place.

What if our John Doe just ignores the whole thing? Remember that "default judgment" when he wasn't able (or aware) to show up? The RIAA makes a motion for (and usulally gets) a default judgment against John Doe for $750 per song listed in Exhibit A (the short list).

Songs on iTunes are 99 cents, and 65-70 cents of that goes to the record company according to most estimates. At $750 per song, you're on the hook to the RIAA for over 1000 times the value of their alleged loss. The RIAA is claiming, without any evidence, that you kept over 1000 people from buying legal copies of the song by giving them a free copy.

The huge dollar figure the RIAA claims you've cost them has come under quite a bit of attack. A current case in Brooklyn, NY may ask the court to rule that $750 per song in damages is unconstitutional. If our John decides to go to court, what are his legal options and how does he defend himself? Again, this gets complicated and, there are no easy answers. John is being given a baptism by fire in the US legal system.

Some defendants have tried challenging the "boilerplate" complaint the RIAA has been using. So far, challenging this boilerplate complaint has met with mixed success. A great number of these cases are still in "litigation", (the process of filing motions, hearing arguments and running up big legal bills for each side) so it's very hard to say with any certainty what strategy our John Doe and his lawyer should adopt. The only way for us to look at the options John has is to look at the path other cases have followed.

Widely celebrated victories are few, but they do exist. They include Candice Chan, the mother of Brittany Chan who has been made famous as the 13 year old Jane Doe from Michigan, and just recently, Debbie Foster and her daughter Amanda from the state of Oklahoma.

These two cases took very similar paths. The attorneys for both Foster and Chan made what's called a "motion for summary judgment." This is similar to playing cards with your buddies and "calling" the other player's cards. It's the legal version of saying "put up, or shut up".

In both cases, the RIAA, when asked to "put up" and show the evidence they had against the defendant, withdrew their complaint.

In the case of Debbie Foster, the judge ruled that even though the RIAA had withdrawn the complaint, they are still potentially liable for the attorney's fees that Foster incurred by defending herself. The court has asked Ms. Foster and her attorney to come up with a dollar amount for legal costs, and will quite possibly force the RIAA to pay the fees for which Ms. Foster would otherwise be liable.

In the case of Chan, the first known victory in one of these complaints, the RIAA was rather upset after withdrawing the complaint. The RIAA went back to court and sued the 13 year old girl directly (rather than through her parents). The RIAA asked the judge to appoint a "Guardian ad litem" (like a surrogate parent for the purposes of trial), and the judge refused. The judge's reasons for not appointing a guardian were technical, and related to the fees a guardian would accrue during a long case. Still, the RIAA was sent home packing in a very public display of sour grapes.

It might seem that asking for "summary judgment" (that legal version of "put up or shut up) is the way to win against the RIAA. Unfortunately it isn't so simple.

In three other recent cases, when a motion was made for summary judgment, judges declined. The reason given by the judges in all three cases? They didn't know enough about peer to peer technology to make a ruling. One judge speculated that the RIAA may have the ability to show the court that the defendant really did download or upload something, and thus that the complaint's basis of "making available" copyrighted material may be invalid.

In all three of those cases, the common factor is that the judge has declined to decide up front if "making available" actually constitutes copyright infringement.

In any event, being sued by the RIAA is not an enjoyable way to spend your time. The burdens placed upon our fictional John Doe are pretty steep, especially considering the fact that the RIAA may not be able to prove that John himself actually did anything wrong. This scenario is being repeated all over the United States, in courtroom after courtroom.

What happens to the $3750 (or the $750 per song) when you pay the RIAA? The artist you allegedly ripped off doesn't see a dime of compensation. The proceeds from the RIAA lawsuits are rolled back into the legal fund the RIAA uses to pay its legal costs. So, in essence, every person who settles for the $3750 only feeds the machine, so it can be unleashed on another person.

The best advice if you are sued by the RIAA is to quickly retain a lawyer who has some experience dealing with RIAA cases. Having knowledgeable council early on won't stop the process from being difficult, but can give you a better chance of protecting your rights.

Update: Ray Beckerman, who wrote the source research for this article, also has provided a list of lawyers who are handling RIAA cases. Several people have pointed out that this would be a useful inclusion at the end of this article. If you're sued by the RIAA, and you've come here looking for info, I urge you to contact one of these lawyers or other appropriate counsel as soon as possible.

Grant Robertson is a writer and technology consultant living in Halifax, Nova Scotia.

RIAA Case Schedule (Updated 11/17/08

RIAA Case Schedule

1. Item: File Reply to Plaintiffs’ Opposition to Motion for Protective Order a. Date and Time: TBD, although likely should be submitted very soon b. Description: Parties must obtain leave of court to file any papers which are neither a motion nor an opposition to a motion. We need to apply for leave of court in a timely fashion in order to file our reply to Plaintiffs’ opposition.

2. Item: File Expert Report intended to rebut Plaintiffs’ expert report a. Date and Time: Document is due by 11/17, as required by FRCP 26(a)(2)(C)(ii), which requires that expert testimony intended to rebut Plaintiffs’ expert report must be filed within 30 days of their report b. Move for an extension

3. Item: Pre-trial Conference a. Date and Time: Tuesday, 11/18/08 at 2:30 pm in the John Joseph Moakley Courthouse Room, 3rd Floor. b. Attendees: Respective counsels for the parties c. Agenda: All pending motions and other matters ready for hearing will be considered at the conference; counsel shall have conferred with clients and with each other to explore the possibilities of settlement before the pretrial conference

4. Item TBD (having to do with Tova Tenenbaum) a. Date and Time: Friday, 11/21

5. File a Notice of Constitutional question and serve on the U.S. Attorney General’s Office a. Date and Time: TBD

6. Item: Jury Trial a. Date and Time: Monday,12/1/08 at 9 am b. Description: Jury Trial to begin.


KU increases penalty for illegal downloading on campus The Associated Press

LAWRENCE | In an attempt to deter students from illegally downloading music or movies in University of Kansas’ student housing, the school has instituted a zero-tolerance policy.

Beginning this fall, university officials said they will deactivate ResNet Network access for students in residence halls if they are notified of a copyright violation and an appeal is denied. Students could still access computers on campus labs and use their university e-mail addresses.

The previous policy used a three strike system, but with an increasing number of complaints from organizations and pressure from the Recording Industry Association of America, officials decided to make the change.

The association recently announced it had sent 408 pre-litigation settlement letters to 23 universities, including the University of Kansas. Association spokeswoman Cara Duckworth said illegal downloading is disproportionately high on college campuses.

substitute university for sweeden and you have our argument



Pre-litigation letters, as reported by the RIAA:

Noank Mission: http://www.noankmedia.com/index.html

NC State Offers Legal Representation: http://www.dmwmedia.com/news/2007/04/16/n-c-state-offers-students-legal-counsel-to-challenge-riaa-subpoenas

Wisconsin-Madison Rejects RIAA request: http://badgerherald.com/news/2007/03/19/uw_warns_music_share.php

Nebraska-Lincoln claims technical roadblocks to complying: http://www.omaha.com/index.php?u_page=2798&u_sid=2348353

Harvard Professors Nesson and Palfrey Tell RIAA : "Take a Hike"
RIAA Targets New Colleges, Still Avoids Harvard
Why the RIAA may be afraid of targeting Harvard students
wired - no harvard suits

In the Fight Over Piracy, a Rare Stand for Privacy