An anonymous George Washington University student targeted by the RIAA for file-sharing is seeking to have the subpoena served on his school quashed and the complaint dismissed. In his motion, the unnamed student raises a couple of issues that could become significant roadblocks for the RIAA in its campaign against on-campus file-sharing.
Throughout its legal campaign against file-sharing, the RIAA has relied on the Cable Communications Policy Act to obtain subscriber data from cable ISPs and DSL providers. Under the CCPA, cable companies are required to cough up the data when ordered to do so by a court. It has worked in the tens of thousands of cases filed by the recording industry against broadband users, and the RIAA has cited the CCPA as the basis for the ex parte subpoenas directed at college students.
There's one problem. Colleges aren't cable providers. Doe number three helpfully points that out to the judge, noting that the CCPA defines a cable operator as an entity that either provides cable service or manages and operates a cable system. "GWU is neither," argues Doe three.
It follows a ruling made in another campus file-sharing case, one involving students at the College of William & Mary in Virginia. There, Judge Walter D. Kelley, Jr. ruled that William & Mary wasn't a cable provider and that the RIAA had incorrectly cited the CCPA as the authority for the ex parte subpoenas. The record labels have appealed Judge Kelley's July decision, and he has yet to rule on the appeal.
The only alternative to the CCPA, argues Doe number three, is the DMCA. The DMCA is the favored tool of rights holders when it comes to copyright infringement; not only does it allow rights holders to fire off takedown notices when an infringing song or video is discovered, but it also empowers the copyright owner to obtain and serve a subpoena on the ISP which hosted the video.
Indeed, Judge Kelley ruled that the DMCA was the sole avenue available to the music industry. The problem for the RIAA is that, in order to obtain a subpoena, it must first issue a DMCA takedown notice. And in order to issue a notice, the ISP in question—George Washington University or William & Mary—must have hosted, cached, or transmitted the songs identified by the RIAA's investigative arm, SafeNet. The schools did not. Any file sharing that occurred was from PC to PC; the songs traversed the universities' networks without ever residing there.
That slams the door on the DMCA as well, argues Doe three. Citing case law holding that the DMCA doesn't apply to ISPs that act as "a mere transmitter of data that is not cached, stored or located by the ISP," Doe three says that RIAA has no authority to obtain the subpoenas.
Doe three also offers a number of other reasons that the judge should quash the subpoena and dismiss the lawsuit. The unnamed student says that the RIAA shouldn't be allowed to lump together a number of unrelated students into a single case. Instead, the labels should be forced to file separate lawsuits under federal court rules barring improper joinder. There's also the question of the the discovery burden that would be placed on the school, which is one of the reasons cited by the Oregon State Attorney General and the University of Oregon in their motion to have a similar set of subpoenas quashed.
If Judge Kelley's ruling on the CCPA and DMCA is adopted in this and other cases, it would have the effect of putting the brakes on the RIAA's legal campaign against on-campus file-sharing. If the schools were hosting the infringing content, the labels would be able to wield the DMCA sledgehammer and easily obtain the names of the students sharing the content. And if the schools were cable operators as defined by the CCPA, they would be forced to turn over identifying data, just as the likes of Comcast, Verizon, Cox, and AT&T are. But it appears that neither law applies to colleges and universities when it comes to students sharing music over KaZaA. Unless Congress sees fit to change the law, the RIAA may be stuck between a rock and a hard place on this issue.
Further reading
- Copyright attorney Ray Beckerman was the first to report on the developments in Arista Records v. Does 1-19. He also has some thoughts on the RIAA's campaign against college students.
- Pike & Fischer has a copy of Doe number three's motion (PDF) available
- Schools that don't act against copyright infringement might see their financial aid cut off under a bill introduced last week.
- ERIC BANGEMAN
