For the past five years, the Recording Industry Association of America (RIAA) has unleashed a barrage of “John Doe” lawsuits aiming at individuals who illegally file-share or download music and infringe on the recording industry’s copyrighted works. But is their tactic fair? Many defendants say ‘no.’ The RIAA’s targets are not commercial entities but private, ordinary individuals. Even some federal judges have grown tired of the RIAA’s modus operandi. The Hon. Nancy Gertner addressed counsel in open court that “counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand that, more than just how we serve them, but just to understand that the formalities of this are basically bankrupting people and it’s terribly critical that you stop it.”1 Now, this is not to condone illegal file-sharing, but the question does turn on whether there should still be an element of fairness when fighting illegal activity.
Who is the RIAA and Who are They Suing?
The RIAA is a trade group based in Washington, D.C. that represents numerous recording companies in protecting artists’ intellectual property.2 The most prominent strategy the RIAA promoted to accomplish this particular mission is by filing “John Doe” lawsuits. Since September 2003, the RIAA has filed tens of thousands of lawsuits for illegal downloading for file-sharing of music.
The RIAA targets those individuals who download music illegally primarily through the use of peer-to-peer (P2P) networks. These individuals thereby “cheat” the songwriters, musicians, producers, and others involved in the production of music out of numerous amounts of royalties. The RIAA tries to catch these individuals by using the very same P2P networks infringers use. The RIAA maintains a list of songs whose distribution rights are owned by the RIAA’s member organizations. It gives that list to its investigating agent to search for online infringers. This investigating company runs copies of a P2P sharing software program, such as LimeWire or KaZaA, and performs searches for particular copyrighted song titles to see if any are being offered by people whose computers are connected to these P2P networks.
For popular songs, the search can turn up dozens, if not hundreds, of hits.3 The RIAA then proceeds with “John Doe” lawsuits. The RIAA explains that when they file a “John Doe” lawsuit, the only information they have is the Internet Protocol (IP) address.4 The RIAA files ex parte discovery requests to obtain subpoenas in order to obtain personally identifying information about the individual from the Internet service provider (ISP). When the defendants are identified, most will settle in view of the $750 minimum damages per song.5 The RIAA’s hardest push on these lawsuits has been towards university students which has seen some bumps in the road for the RIAA, most significantly with the use of their investigating agent, MediaSentry.
RIAA’s Agent - MediaSentry
MediaSentry, a division of SafeNet, is hired by the RIAA to act as its investigator to gain knowledge of the alleged copyright infringers. It specializes in logging into P2P networks, where it downloads some music, takes screenshots of open share folders and documents the offending IP address.6 MediaSentry’s investigative activities have been challenged in federal courts in eight states regarding its violation of states’ requirement of having a private investigator’s license.
The Oregon Attorney General, in support of the University of Oregon’s Motion to Quash, stated that MediaSentry is investigating in Oregon without a license. By investigating Oregonians without proper licensing, MediaSentry may be committing a misdemeanor crime.7 Letters from the Commonwealth of Massachusetts Certification Unit and the State of Maine State Police warned MediaSentry that they are prohibited from investigating its citizens without a private investigator’s license.8
MediaSentry was also issued a letter from the State of Michigan Department of Labor and Economic Growth dated February 22, 2008, informing MediaSentry that they may be in violation of Michigan state law.9 In order to continue investigating and obtaining information for the RIAA, MediaSentry would first have to obtain a private detective agency license. Despite the warning, MediaSentry continued to proceed with their investigation without obtaining any license in the state. The assistant general counsel for Central Michigan University submitted a complaint against MediaSentry with the Department of Labor and Economic Growth on July 11, 2008 asking the department to issue a cease and desist letter until MediaSentry obtained a license to conduct business in the state of Michigan. Counsel supported her request by citing to eight cases in Florida, Texas, Oregon, Massachusetts, Maine, North Carolina, Arizona and Michigan, respectively, that have challenged in federal courts the unlicensed activity of MediaSentry as a private investigative agency.10 The RIAA has described in affidavits in numerous cases filed against unknown university students that it is justified in its need for extraordinary ex parte discovery orders by reliance upon the results of the investigative efforts of MediaSentry. CMU counsel further noted that the affidavits are virtually identical in eight different John Doe lawsuits filed in Michigan from May 2007 through May 2008.11
Discussion Regarding What Constitutes a “Distribution”
MediaSentry participated in 3. Capitol v. Thomas will begin a new trial on March 9, 2009 after the court ruled that Jury Instruction No. 15 was erroneous and substantially prejudiced the Defendant.22
Those who may have a continuing interest on the status of the RIAA’s fight against online piracy may want to keep informed by visiting New York attorney Ray Beckerman’s website.23 Beckerman’s website contains the most up-to-date information on the status of various RIAA suits in progress across the United States.
1 Capitol Records et al. v. Alaujan et al., No. 03-11661-NG, (D. Mass.), Mot. Hrg. Transcr.11:1-7 (Jun. 17, 2008)
3 Catherine Rampell, How It Does It: The RIAA Explains How It Catches Alleged Music Pirates, The Chronicle of Higher Education (May 13, 2008), http://chronicle.com/free/2008/05/2821n.htm
5 17 U.S.C. § 504 (c)(2)
6 David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation, Wired Blog Network (Sept. 4, 2008), http://blog.wired.com/27bstroke6/2008/09/proving-file-sh.html
7 Arista et al. v. Does, No. 6:07-cv-06197-HO (D. Or.) Univ. of Or. Rep. Sup. Mot. Quash Pl’s Subp. 5:11-14 (Nov. 28, 2007)
12 Capitol Records, Inc. et al. v. Thomas, No. 061497 (D. Minn.), Memo. & Or. 3:9-13 (Sept. 24, 2008)
13 Id. 8:,13-16 citing Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348 (8th Cir. 1994)
14 Id. 9:12-16
15 Id. 9-10
16 Atlantic Recording Corp., et al. v. Howell, No. CV-06-02076 (D. Az.), Or. 10:3-6 (Apr. 28, 2008), citing Universal City Studios Prods. LLP v. Bigwood, 441 F. Supp.2d 185, 190–91 (D. Me. 2006); Motown Record Co. v. DePietro, No. 04-CV-2246, 2007 U.S. Dist. LEXIS 11626, at *12, 2007 WL 576284, at *3 (E.D. Pa. Feb. 16, 2007)
17 Elektra et al v. Barker, No. 7:05-CV-07340 (S.D.N.Y.), Op. & Or. 11 (Mar. 3, 2008)
18 17 U.S.C. § 106(3)
19 Atlantic Recording Corp., et al. v. Howell, No. CV-06-02076 (D. Az.), Or. 6:16-19 (Apr. 28, 2008)
21 Atlantic Recording Corp., et al. v. Raleigh, No. 4:06CV01708 (E.D. Mo.), Amend. Counterclaim for Individual & Class Action Relief, (filed Nov. 17, 2008)
22 In Jury Instruction No. 15, the Court instructed: “The act of making copyrighted sound recordings available for electronic distribution on a peertopeer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” Capitol Records, Inc. et al. v. Thomas, No. 061497 (D. Minn.), Memo. & Or. 2:2-6 (Sept. 24, 2008)
Heather Neaveill is an attorney licensed to practice in Illinois, a professional violist, and a music educator. She is a 2006 graduate of the John Marshall Law School. In addition to a vibrant music career, she maintains an entertainment law practice in downtown Chicago.