Tuesday, January 01, 2008


Subpoenas and shakedowns

Here’s a hypothetical situation:

Suppose you’re standing on a street corner, looking down a side street. You see a woman put a shopping bag down and look the other way as she roots around in her purse. You watch a man walk by, grab the bag and run. You get a good look at him. You walk away.

Suppose that the woman screamed when she noticed that her bag was grabbed, and someone on the main street came running to the corner, but only saw the snatcher running in the distance. He can’t identify the culprit. but he knows that you saw the whole thing. And he watched you leave.

Should you be compelled to identify the thief? The second bystander identified you as having the critical information. The police came to you. What if you said, “No, I won’t identify the man,” what then? Maybe you recognize him as a friend of a friend. Maybe you think he’s connected to a gang, and you’ll be in danger if you cooperate. Maybe....

Yet we generally accept that if a court issues a subpoena, you have to appear and testify. If you don’t comply, you can be imprisoned.

Now consider this real situation:

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 state’s 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 “a lot of crazy stuff” filed in response to its lawsuits and subpoenas. “But coming from the office of an attorney general of a state?” Mr. Sherman asked, incredulous. “We found it really surprising and disappointing.”

The deal here is that the university has been identified as a “witness”, which has the information about who did the file sharing (that is, they can connect the IP addresses to the students who were involved). The university has been subpoenaed for the information. And they refuse to give it.

We’d normally think that wrong.

In this case, though, what the university is fighting are the tactics used by the recording industry, which is strong-arming young people who didn’t think they were doing anything wrong — or at least didn’t think they were doing anything very serious. These are organized shakedowns, demanding thousands of dollars in restitution and threatening potentially ruinous lawsuits if the students don’t pay. And they’re targeting students because the pickings are easy, and there’s a high concentration under one network administrative domain, so they can grab a bunch of them at once.

And the University of Oregon is saying no. I agree with their decision. As the state attorney general says:

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

It’s clear to me that under current law, giving copies of copyrighted recordings is illegal. I think, as I’ve said before, that the recording industry needs to adapt in this regard, but they certainly have the right to enforce their copyright as it stands. But it’s wrong to shake down college students; it’s wrong to enforce the copyright in this way. And I’m pleased that Oregon is challenging them on it.

Sure, shut down the file sharing. Sure, put warnings in place so we’re all on notice that you take this seriously. But don’t hang a bunch of students out to dry, or we’ll all just take you for blood-sucking pond scum.

Here’s hope that this case turns the situation around, stops the shakedowns, and puts more sensibility into the enforcement process.

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