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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance of...

July 27, 2004
RIAA Subpoenas for John Does ValidEmail This EntryPrint This Entry
Posted by Ernest Miller

C|Net News reports that the RIAA has won a significant battle in its lawsuits against thousands of John and Jane Does (Judge: RIAA can unmask file swappers). The ruling basically allows the RIAA to subpoena (on an expedited basis) a broadband provider for the identities of the John Does the RIAA has sued for copyright infringement. The RIAA must make a prima facie case of infringement, but the various arguments raised to quash subpoenas were rejected.

Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn't binding. Read the 26-page decision: Sony v. Does 1-40 [PDF].

The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision. I agree with Paul Levy:

Paul Levy, an attorney at the nonprofit group Public Citizen, said that "the nice thing about the ruling is that (the judge) recognizes the First Amendment interests at stake here and he applies a balancing test." Levy, who filed a friend-of-the-court brief opposing the RIAA, said that Chin's analysis ensures that companies filing a copyright infringement lawsuit must prove they have a real case and aren't merely on a fishing expedition for someone's name.
The court reserved the right to address the other arguments, such as personal jurisdiction and improper joinder, later. This decision merely addressed the question of quashing the subpoenas. Now that the RIAA knows who it should sue, severance and and personal jurisdiction arguments will probably be made on behalf of the defendants.

There was one interesting aspect of the personal jurisdiction question. Defendants/amici were arguing that the IP/geographic location databases were accurate and showed most of the defendants outside of New York, while the plaintiffs were arguing that they weren't accurate enough to deny the subpoenas:

A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defedants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. These geographic designations indicate the "likely" locations of the residence or other venue where defendants used their Internet-connected computers. Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York.

Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." [citations omitted]

Shades of Nitke v. Ashcroft, in which the government advocates the use of geolocation services to promote community standards on the internet with regard to obscenity. Censorware expert Seth Finkelstein has provided testimony that such services are flawed: (Expert Report of Seth Finkelstein in Nitke v. Ashcroft).

Tech Law Advisor has some additional comments ( Up/Downloaders Identities Not Protected by First Amendment).


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