On Standing Up to the RIAA and the First Amendment
posted by Daniel Solove
The Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak’s essay in the New York Times:
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. . . .
“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.”
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 “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.
I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.
One issue involves students’ First Amendment rights. Although the Supreme Court has held that copyright infringement isn’t protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has “built-in First Amendment accommodations” via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that “the RIAA is a big bad bully.” That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.
The RIAA might argue something like this: “But the people whose identities we’re seeking are engaging in illegal piracy. They’re trading music files. There’s not a strong argument that any protected speech is involved.” Even if they’re right about this, it still doesn’t extinguish the First Amendment interests of the individuals suspected of piracy. Suppose, for example, a person anonymously posted a comment about another person that looked clearly defamatory. The fact that it might look like a slam-dunk case still doesn’t obviate the need to establish the heightened First Amendment standards for subpoenas. Copyright should be no different.
Courts are still working on shaping the heightened standard for revealing the identity of an anonymous speaker, but several courts have recently been requiring that the person or entity seeking the information satisfy the summary judgment standard. See Doe v. Cahill, 884 A.2d 451 (Del.2005) (see here for my post about Cahill) and In re Does 1-10, — S.W.3d –, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007) (see here for my post about In re Does).
So the RIAA shouldn’t be given an easy time when seeking people’s identities via subpoenas. It should be forced to make its case and meet the summary judgment standard. Maybe it will succeed in doing this in most cases, but it should at least be challenged to demonstrate its case.