Stolen from /.
The RIAA vs. John Doe, a layperson's guide to filesharing lawsuits
Posted Aug 7th 2006 12:30AM by Grant Robertson
Filed under: General
The RIAA vs. John Doe, a layperson's guide to filesharing lawsuitsRay Beckerman of Recording Industry vs. The People put together an article that explains how the RIAA's militant enforcement arm legal team find, obtain records on and sue ISP account holders who may or may not have ever been users of P2P applications. It's a great reference, but (no offense intended to Ray) it's dry like a bread-sandwitch.
I decided to take a stab at rewriting it in something closer to English than lawyer. In hopes that it would be more accessible.
So, with thanks to Ray Beckerman, let's take a look at The RIAA vs. John Doe, in what I hope serves as a layperson's guide to filesharing lawsuits.
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 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 attorney's 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.
Grant Robertson is a writer and technology consultant living in Halifax, Nova Scotia.