‘JANE DOE’ FIGHTING RIAA FILE-SHARING SUBPOENA
Saying RIAA shouldn’t have right to strip her anonymity without allowing her to contest order, Boston College student alleged to be engaged in unauthorized file-swapping is challenging attempts by recording industry to uncover her identity.
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In motion seeking to quash subpoena issued under Sec. 512(h) of Digital Millennium Copyright Act (DMCA) -- filed in U.S. Dist. Court, Boston -- attorneys for “Jane Doe” argued Mon. that: (1) Subpoena was unauthorized because the college, acting as an ISP, served merely as conduit for allegedly infringing material. (2) DMCA subpoena was procedurally deficient because it sought identity of multiple users, requested Jane Doe’s e-mail address and failed to identify copyright owner on whose behalf it was being sought. (3) Absence of “case or controversy” voided subpoena. (4) Due process clause required sufficient procedural protections to be in place before Internet user could be stripped of her anonymity, requirement Sec. 512(h) didn’t meet.
In fact, Jane Doe said, DMCA’s procedural requirements are so minimal that they have created substantial risk users will be erroneously deprived of their constitutional right to anonymity, as 66-year-old Mass. woman discovered when RIAA dropped its lawsuit against her after discovering her computer wasn’t capable of running file-sharing program allegedly used for copyright infringement. Jane Doe urged court to adopt test for handling requests for discovery of online speakers’ identity set out in Dendrite International Co. v. Doe No. 3 and require that: (1) Notice be given user that subpoenaing party was seeking user’s identity. (2) Complaint identified nature of alleged infringement, identity of copyright owner and each item claimed to be infringing. User must be given opportunity to be heard, Doe said, and court must determine whether pleading and evidence presented made prima facie claim for infringement.
Many of same arguments were raised in continuing feud between RIAA and Verizon over disclosure of peer-to-peer file sharers and were given a less-than-enthusiastic reception by U.S. Dist. Court, D.C. However, attorney David Plotkin said he and his American Civil Liberties Union co-counsel thought it important to argue issues from perspective of DMCA subpoena target, rather than ISP. There’s “meaningful difference” between Jane Doe’s particularized harm and interest in anonymity and Verizon’s, he said. Moreover, Plotkin told us, while Verizon court did decide First Amendment Internet anonymity issues “head- on,” this latest lawsuit (there’s one other challenge to RIAA subpoenas by individual Jane Doe) frames issue as being one of Internet user’s liberty interest in anonymous free speech under Due Process Clause. “We're not saying the recording industry shouldn’t go after file sharers, only that they must do so in a way that’s fair,” ACLU Senior Staff Attorney Christopher Hansen said. RIAA originally obtained subpoena against student last summer, but it was thrown out after Boston College challenged fact that it was issued in D.C. RIAA obtained new subpoena later that month -- that time issued by clerk of Mass. court.