[JPL] In the Fight Over Piracy, a Rare Stand for Privacy

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http://www.nytimes.com/2007/12/31/us/31bar.html?em&ex=1199336400&en=d1bb9a4e
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December 31, 2007
SIDEBAR
In the Fight Over Piracy, a Rare Stand for Privacy

By ADAM LIPTAK
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 state¹s 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 ³a lot
of crazy stuff² filed in response to its lawsuits and subpoenas. ³But coming
from the office of an attorney general of a state?² Mr. Sherman asked,
incredulous. ³We found it really surprising and disappointing.²

No one should shed tears for people who steal music and have to face the
consequences. But it is nonetheless heartening to see a university decline
to become the industry¹s police officer and instead to defend the privacy of
its students.

The recording industry may not be selling as much music these days, but it
has built a pretty impressive and innovative litigation subsidiary.

In the past four years, record companies have sued tens of thousands of
people for violating the copyright laws by sharing music on the Internet.
The people it sues tend to settle, paying the industry a few thousand
dollars rather than risking a potentially ruinous judgment by fighting in
court.

³People get pushed into settlements,² said Fred von Lohmann, a lawyer with
the Electronic Frontier Foundation, a civil liberties group. ³The Oregon
attorney general is showing what a real fight among equals would look like.²

In his filings, Mr. Myers claimed to be looking for a middle ground.

³Certainly it is appropriate for victims of copyright infringement to
lawfully pursue statutory remedies,² Mr. Myers wrote last month. ³However,
that pursuit must be tempered by basic notions of privacy and due process.²

³The larger issue,² Mr. Myers said, ³is whether plaintiffs¹ investigative
and litigation strategies are appropriate.²

Mr. Myers questioned the tactics of MediaSentry, an investigative company
hired by the recording industry. He said the company seemed to use data
mining techniques to obtain ³private, confidential information unrelated to
copyright infringement.² He added that it may have violated an Oregon
criminal law requiring investigators to be licensed.

A spokeswoman for MediaSentry said it collected only information that users
of peer-to-peer networks make available to anyone who cared to look. She had
no comment on the licensing law.

The record companies, in an apoplectic response in court, accused the
university of having ³a political agenda.² They said that it was protecting
people who had broken the law and that it was not entitled to raise privacy
and due process arguments on behalf of its students.

³Hundreds of universities and dozens of commercial Internet service
providers have responded to the exact same subpoenas,² the record companies¹
lawyers wrote.

James Gibson, a law professor at the University of Richmond, said Mr.
Myers¹s arguments had been raised in other cases and had met with little
success. Still, Professor Gibson said, ³it¹s significant that a public
university and its state apparatus is standing up to the R.I.A.A.²

Mr. Sherman, of the recording industry association, predicted that Mr.
Myers¹s motion would fail and said the industry¹s litigation strategy had
worked well.

³The litigation program, as controversial as it is often written up to be,
has been very successful in transforming public awareness,² Mr. Sherman
said. ³Everybody used to think this was legal. Now everybody knows it¹s
illegal.²

Indeed, the program seems to be expanding, and universities are being asked
to play an even bigger role. In February, the association started asking
universities to identify students suspected of file sharing and to pass
along ³prelitigation letters² to them. The association says it has provided
some 4,000 such letters to more than 150 colleges and universities. The
letters offer the students what they call bargain settlements of about
$3,000 if they act fast, by punching in a credit card number at
www.p2plawsuits.com.

³The Œreduced¹ settlement amount, in other words, represents the record
companies¹ savings from cutting out the middleman ‹ our justice system,² the
Electronic Frontier Foundation said in a recent report.

The universities are under no legal obligation to pass the letters along,
but most do. Those that don¹t typically receive subpoenas like the one
issued to the University of Oregon.

At least one other public university in Oregon has cooperated with the
industry. In 2004, Portland State responded to a record industry subpoena by
blandly and efficiently providing the names, addresses, phone numbers and
goofy e-mail addresses of two roommates. The university said it could not
say which student¹s computer was involved, so it fingered both of them.

³We definitely felt betrayed,² said Karen Conway, the mother of one of the
roommates. ³They readily turned over private information without notifying
us. They placed responding to a legal subpoena far above a student¹s right
to privacy.²

Though her daughter Delaney was blameless, the record companies¹ lawyers
demanded $4,500. It was, Ms. Conway said, ³basically extortion,² and the
family was forced to hire a lawyer. The case against Delaney Conway was
eventually dropped. Her roommate settled.

Mr. Sherman said the University of Oregon should disclose what it knew and
let the legal system sort out the rest. ³It¹s no different than us
subpoenaing Verizon,² he said.

But an institution of higher education has different aspirations and
obligations than an Internet service provider, which is why Portland State¹s
actions are so unsettling. The University of Oregon¹s efforts may be doomed,
but there is something bracing about them nonetheless.

All the university is saying, after all, is that the record industry must
make its case in court before the university will point a finger at one of
its own.

Online: Documents and an archive of Adam Liptak¹s articles:
nytimes.com/adamliptak.


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