Law gets those who dare to download

The Recording Industry Association of America's latest tactic to deter file-swappers - a broad and encompassing series of subpoenas and lawsuits filed against music downloaders - has left many file-swappers unsure of how to proceed in getting free music.

Many downloaders have more questions than answers regarding the extent of the RIAA's pursuit of file-swappers, the safety of downloading music and the chances of being sued. In short, what's the deal with downloading?

The RIAA began to take legal action against individual music downloaders in July, sending out over 1,800 subpoenas to Internet Service Providers around the country demanding that they release the personal information of customers accused of illegally downloading copyrighted material, said Ren Bucholz of the Electronic Frontier Foundation, a civil liberties organization that deals with technology issues.

From those subpoenas, the RIAA filed 261 civil lawsuits across the country this fall, against people ranging from 12-year-olds to grandparents, Bucholz said.

The RIAA's newest legal tactic stems from its interpretation of the Digital Millennium Copyright Act of 1998, which allows the RIAA to use a special kind of subpoena called a clerical subpoena, which is akin to "filling out a half page form," according to Eli Eilbott, a Washington area copyright attorney. He is currently assisting several clients that have been sued by the RIAA and says that they are misusing the subpoena process.

"They are not using valid subpoenas," he said. "You are basically being commanded by a clerk from the court."

Unlike normal subpoenas which are issued by a judge, clerical subpoenas do not require evidence to be disclosed and there is no judicial review, said Eilbott. This is why Verizon, one of the ISP's that the RIAA subpoenaed, initially refused to comply, until it was ordered to do so by a federal court while the validity of the clerical subpoenas was being determined, said Eilbott.

While the courts are deciding, the RIAA has may continue to issue subpoenas, and it warns that there may be more coming, said Sarah Duetsch, vice president and associate general counsel of Verizon Communications, who compared the RIAA's recent legal actions to an "unsupervised fishing expedition."

Eilbott agreed that the association's tactics were perhaps unnecessary.

"The recording industry is using overly drastic measures to respond to the issue," Eilbott said. "Suing hundreds if not thousands of people is an excessive response."

While the penalty for copy right infringement could be up to $150,000 per song, in most cases the defendants have opted to settle out of court for less money, Eilbott said.

The RIAA has hired investigators to pose as Kazaa users, and purchase and download the Kazaa software in order to investigate people's hard drives, he said.

With 50 to 60 million Americans still downloading music with file-sharing programs, the chances of being sued are relatively slim, Eilbott said.

"Given that there are millions of people file sharing the odds are in their favor that they won't get nailed," he said.

Obviously the best way to avoid a law suit would be to not download and share any music files at all, but for those who can't resists the temptation of free music the second best way to protect yourself against legal action is to disable the file-sharing option on your downloading software, said Ren Bucholz, an activist for the Electronic Frontier Foundation whose Web site offers tips on "How Not to Get Sued by the RIAA for File-Sharing."

Also the number of songs downloaded plays a factor in who the RIAA pursues, said Eilbott. "The student that has 50 to 100 songs on his hard drive is much less likely to be sued than a student who has 50,000 to 100,000 songs," he said. According to Eilbott, most people that have been sued have had over 1,000 songs on their hard drives.

Still while many students are aware of the RIAA's latest legal actions they remain undeterred from downloading songs.

"I just don't care [about the lawsuits], there are so many people that they can't get everybody," said senior Leo Benavides, who was not afraid to keep his collection of around 1,000 MP3s on his hard drive.

Other students gave similar responses.

"It's influenced my decision when it comes to file sharing, but I still download from Kazaa," said freshman Rachel Tinn. "It seems like everyone is doing it, but no one is getting in trouble."

Tinn like junior Michael Varum both turned off the file-sharing option on Kazaa as a way of avoiding detection and lawsuits.

"Technically, what the law said [about copy right infringement] is you can download songs but you just can't share them," said Varum, who has between 700 and 800 songs on his computer.

The RIAA is having some success with there campaign, however - file-sharing overall has dropped 15 percent, according to Darrell Hayes, a professor in the School of Communication who said that he spends considerable time talking about the RIAA and the legal aspects of downloading music in his Understanding Mass Media class.

"They are trying to intimidate people to some degree and say 'hey we are going to take action,'" Hayes said.

However, Professor John Watson, who teaches communication law, said he doubts the effectiveness the lawsuits will have.

"Kids are not scared of lawsuits," he said. "The cost of filing the lawsuit is more then they will ever get from these kids. It's designed to send a warning to kids and their parents."

Many remain critical of the RIAA strategy and contend that its lawsuit campaign is too far-reaching and broad.

Bucholz, the activist for the Electronic Frontier Foundation, said that he was contacted by a school teacher who denied accusations from the RIAA that she downloaded a Snoop Dogg song.

"What we are seeing is when an industry goes on a drag net strategy suing hundreds and hundreds of people they are going to make mistakes," Bucholz said.

Others have criticized the association's use of the clerical subpoenas as a violation of amendment and privacy rights. Duestch the Verizon associate general counsel, said that the subpoenas violate what is known as Article Three in the constitution which limits courts' powers and says that a court cannot take action unless there is a case or controversy before the court.

"We knew this power could extend to a potential violation of users' privacy," she said. "This subpoena power was never supposed to extend to users home computers."

Several schools, including the Massachusetts Institute of Technology, Boston University, and Columbia University have successfully challenged the subpoenas on these grounds.

While no student at AU has been sued to date, the University has responded to 150 copyright violation complaints from various copyright owners, according to the University's Office of General Counsel, which serves as the University's designated agent for the Digital Millennium Copyright Act.

The RIAA was unavailable for comment.

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