I was recently asked to write about the RIAA John Doe and Jane Doe lawsuits. While I may be against anonymity on the internet, I’m thoroughly opposed to John and Jane Doe lawsuits for a variety of reasons.
“In 2004, the Recording Industry Association of America initiated “Jane/John Doe” lawsuits in which the real names of persons accused of copyright infringement via peer-to-peer file sharing was not known. Instead, an IP address was listed in court documents filed by the RIAA, which insisted that tan IP address could be used as a unique identifier for file sharers. Write a 2-3 page paper arguing for or against this practice on the basis of legal and evidentiary implications. Comment on what basis such cases would stand up in criminal and civil proceedings.”
The noted astrophysicist Carl Sagan once wrote “absence of evidence is not evidence of absence;” while Sagan’s quote may make perfect sense in the world of astrophysics, it can hardly be said to make any sense in a court of law (Wikiquote, 2010). The Recording Industry Association of America (RIAA) took Carl Sagan’s quote to heart when they began filing ex parte lawsuits against IP addresses, sparking the disgust of the cyber community in the process. The contention from the cyber community is understandable as will become apparent, the methods employed by the RIAA in many ways defy logic.
RIAA lawsuits begin with utilization of peer to peer file sharing software to observe files being shared and listing the IP addresses of locations from which those files can be downloaded. There are two presumptions that then occur; first, that the file being downloaded is in fact copyrighted material and second that the IP address can be individualized to a single person. Unfortunately neither presumption is accurate as in the first case, a file name hardly by itself constitutes copyrighted information. For example if I rename a photograph something as innocuous as a glass of water but name it “cHiLd PoRn.jpg” the name does not make the content illegal, which is coincidentally why cybercrime investigators have libraries of hash values for files containing illicit depictions. The nature of the RIAA lawsuits do not require a burden of proof to show that copyrighted material is in fact being shared.
In regards to the second presumption, most users do not possess a static IP address, which in actual fact means that their IP address regularly changes. While an ISP may be able to indicate that a certain login was assigned the IP and link the login to the registered user, there is no guarantee that the registered user was the individual who was involved in file sharing. There are many ways in which another individual may have utilized the internet connection of another in order to facilitate file sharing. The first method would be intrusion into a wireless network where massive amounts of files may have been downloaded by individuals having no connection whatsoever with the registered user. Another possibility is that a trojan or virus is present on a computer in the network for the purpose of downloading and seeding files. In those instances, the Digital Millennium Copyright Act of 1998 indicates that American morays, folkways, and norms do not uphold the penalizing of individuals or corporations where their IT infrastructure is utilized for copyright infringement (Borland, 2003).
Based upon the IP addresses obtained, the RIAA files ex parte lawsuits against the IP addresses which allows them to subpoena internet service providers for the users that were assigned to that IP at the time of the purported file transfers (Bangeman, 2007, Borland, 2003). It is important to note that the RIAA also files against hundreds of IP addresses in a single subpoena, which arguably should be done in separate lawsuits as it is unlikely that the defendants are connected (Borland, 2003). Once registered users are discovered the RIAA actually drops suit against the IP address and files suit against the registered user and demands a settlement in the neighborhood of 3 thousand dollars (Roberts, 2010).
The legal standpoint of filing suits ex parte has come under fire itself when a federal judge in New Mexico ruled that defendants have the right to defend their legal interests (Bangeman, 2007). In the ruling, Judge Garcia ordered that RIAA attorneys give information to ISP retained attorneys to contact individuals whom are being targeted through IP addresses (Bangeman, 2007). Of particular concern is the need of defendants to have evidence disclosed when they become the target of a lawsuit via IP. Unfortunately, more recent appeals in other federal courts have been in the RIAA’s favor (Kravets, 2010a)
The RIAA seems to value songs at more than 750 dollars each; however, this is flawed logic as most songs can be downloaded from services such as iTunes for less than a dollar (Kravets, 2010b). Furthermore it also relies on the idea that each upload represents the loss of a sale, yet there exists no way to know that individuals would have ever purchased the song regardless of it’s availability over file sharing networks (Kravets, 2010b). Even if we do assume lost sales, a song would have to be downloaded and then uploaded to no less than 749 other individuals which is highly unlikely.
I believe the RIAA has failed to recognize opportunities available to change distribution methods which is alienating it to consumers. Legal process is designed to for mutual public interests; however, copyright infringement laws do not reflect the ideals of the populace. This is particularly true where the same song can be legally heard on the radio or seen on the television, yet if downloaded over peer to peer networks becomes copyright infringement. Were the RIAA and record labels it represents to embrace peer to peer networks they could dictate advertising or other novel revenue streams that would endear it to customers; furthermore, peer to peer would cost them very little as bandwidth is distributed. We have already begun to see alternate distribution methods from television stations as well as some segments of the video game industry and know from those models that exploring alternate distribution models can be highly lucrative. This is not to say that I condone the copyright infringement which does occur, but rather to say that we need to completely overhaul the models to reflect the changes of the 21st century in order to offer value for all stakeholders, only then will we effectively impact the estimated 250 billion dollars in annual copyright infringement (Samaha, 2008).
References
Bangeman, E. (2007). Judge deals blow to RIAA, says students can respond to John Doe lawsuit. Retrieved from http://arstechnica.com/tech-policy/news/2007/06/judge-deals-blow-to-riaa-says-students-can-respond-to-john-doe-lawsuit.ars
Borland. J. (2003). Court: RIAA lawsuit strategy illegal. Retrieved from http://news.cnet.com/2100-1027_3-5129687.html
Kravets, D. (2010a). Courts oks unmasking identities of copyright scofflaws. Retrieved from http://www.wired.com/threatlevel/2010/04/unmasking-copyright-scofflaws
Kravets, D. (2010b). $675,000 RIAA file sharing verdict is ‘unreasonable.’ Retrieved from http://www.wired.com/threatlevel/2010/01/riaa-verdict-is-unreasonable/
Roberts, P. (2010). RIAA sues 532 ‘John Does.’ Retrieved from http://www.pcworld.com/article/114387/riaa_sues_532_john_does.html
Samaha, J. (2008). Criminal Law 6th ed. Belmont, CA: Thomson Higher Education.