On Standing Up to the RIAA and the First Amendment

music1.jpgThe 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.

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15 Responses

  1. Stephen Aslett says:

    Prof. Solove,

    On a related note, you should check out Joshua Dickman’s article, Anonymity and the Demands of Civil Procedure in Music Downloading Lawsuits, 82 Tul. L. Rev. ___ (2008) (forthcoming), which creatively argues (albeit inexplicitly) that these RIAA suits could be deterred by judicious application of the FRCP’s joinder rules.


  2. Interesting post. The Stored Communications Act, 18 USC § 2703(c)(2) requires a service provider (Univ. of Oregon is one) to turn over name and other identifying information in response to an administrative subpoena (without notice).

    Would you argue that this provision is unconstitutional because it provides no protection for the individual, and does not require any testing of the reasons why or the merits?

  3. Michael asks: “Would you argue that this provision is unconstitutional because it provides no protection for the individual, and does not require any testing of the reasons why or the merits?”

    Yes, I have in fact argued that this provision of the SCA would be unconstitutional as applied in cases where speech or websurfing activities were involved.

    The article is The First Amendment as Criminal Procedure, 82 NYU Law Review 112 (2007).

  4. Dave H says:

    Just to set the record straight on copyright law: Copyright Law’s “built-in” First Amendment protection is the Idea-Expression dichotomy, not fair use. As long as only expressions and not ideas are not protected by Copyright Law, it does not interfere with the goal of the First Amendment, the “marketplace of ideas.” “Fair use” is an entirely separate issue, an affirmative defense, which generally does not require analysis of First Amendment concerns (since those concerns are already “built in(to)” the fundamental concept of what copyright law protects and what it does not).

  5. Dave H — actually, we’re both right, at least according to Eldred v. Ashcroft:

    In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id., at 560. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U.S.C. § 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper & Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” 471 U.S., at 556 (internal quotation marks omitted). Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U.S., at 349–350.

    Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U.S.C. § 107, the defense provides: “[T]he fair use of a (p220) copyrighted work, including such use by reproduction in copies…, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” Harper & Row, 471 U.S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

  6. Bruce Boyden says:

    Well, everyone likes to stick it to the RIAA. However, the University of Oregon’s opposition here borders on the frivolous. In fact, it may be just across the border, in Frivolousness Land. I don’t think this is the sort of tactic that should be cheered.

    Here’s the motion to quash: http://www.ilrweb.com/viewILRPDF.asp?filename=arista_does1-17_071031MotQuashMemoLaw

    The FERPA argument is ludicrous. FERPA contains an exception under 20 USC s 1232g(b)(2)(B) that permits response to any “lawfully issued subpoena,” so long as the *recipient* — i.e., the school — notifies the student before responding. The AG hasn’t indicated why it can’t notify the students in question. Nor does it claim the subpoena is not “lawfully issued.”

    The argument that the subpoena was obtained ex parte is also silly. The RIAA doesn’t know the identities of the defendants; that’s the whole point of the subpoena. And it’s never been the law that, before you can get discovery from third parties, you have to haul all potential third-party witnesses into court for some sort of preliminary hearing.

    The undue burden argument is also ridiculous. The University has been subpoenaed as a third party for information identifying the defendants in a filed case. What the AG wants to do is litigate the merits — and they’re claiming that the burden of investigating the merits is “undue.” They don’t have to litigate the merits, all they have to do is turn over the requested information, i.e., whatever records they have on who leased what IP address at what time. That’s hardly any burden at all; ISPs respond to thousands of these requests a year, most of them not copyright cases. It’s up to the *defendants* to litigate the merits. If the AG’s office wants to represent the students, it should make an appearance as their attorney.

    The idea that 17 U.S.C. s 512(h) is now the sole discovery method available to plaintiffs in copyright cases is also ridiculous. There’s absolutely no indication of that in the statute. Frankly, the Oregon AG just seems to be making stuff up.

    I think people are cheering on the University of Oregon here because they don’t like the fact that copyright law gives the record labels the right to sue to protect their music. But if you accept that Title 17 is the law of the land, subpoenas like the one at issue here are a necessary and unremarkable preliminary step in going after anonymous infringement. Barratry is not an appropriate response to that state of affairs.

  7. Bruce Boyden says:

    One more thing, now that I’ve got that off my chest, about decisions like Cahill. I’m not sure I see the point of applying Cahill to asserted causes of action that don’t involve speech. Dan, your hypothetical assumes that there could possibly be some speech at issue here that the RIAA saw but didn’t mention in its papers; its pleading, under this view, might just be a stalking-horse for an attempt to reveal the defendants’ identity and thereby (somehow) silence them.

    But that theory could apply to any case involving a computer. A bank sues me (as John Doe) for allegedly breaking into their website. But maybe they saw some post of mine on Wikipedia using the same IP address in which I criticized the bank. Heck, why limit it to computer cases — this issue could arise in ANY John Doe case whatsoever. I hit and run a vehicle. The vehicle’s owner gets my license plate, files suit against John Doe and subpoenas the DMV to get my information. But who knows if there really was a hit-and-run accident? Maybe the plaintiff just saw my “Stop Continental Drift” bumper sticker and wants to expose me for the tree-hugger that I am. Should Cahill apply to the hit-and-run case? First Amendment rights to speak anonymously could potentially be at issue.

  8. Bruce,

    I think that anytime that a person might face criminal or civil liability for speech-related conduct, a subpoena for that information could implicate the First Amendment.

    Suppose I were to post an anonymous comment that consisted entirely of something that readily appeared to be defamatory. One couldn’t say so with 100% certainty, but let’s say 90% certainty. The subpoena would still require heightened First Amendment protections, right?

    Moeover, the fact an anonymous speaker might clearly be engaged in tortious or illegal conduct doesn’t extinguish her First Amendment rights.

    In my article, The First Amendment as Criminal Procedure, 82 NYU Law Review 112 (2007), I discuss the issue about how we should reasonably limit the scope of the First Amendment, as nearly anything can be understood to have an expressive dimension. I argue that First Amendment protections “should not apply whenever any expressive or associational activity is involved but only when such activity implicates values protected by the First Amendment.”

    In your example, I don’t see how the subpoena implicates First Amendment values. In the case of an anonymous file-trader, there is the potential that fair use is involved. Illegal copyright violations are different from traffic infractions because unlike traffic infractions, the copyright violation is very intimately entangled with free speech. The Supreme Court seemed to recognize this fact in Eldred, but in typical Supreme Court fashion, it finessed the difficulties of the issue and addressed them in a cursory manner. Although trading music files might rarely be fair use or free speech, it doesn’t strike me that this would categorically be the case.

    Anyway, why should the RIAA be treated more specially than the defamation plaintiff?

  9. Bruce Boyden says:

    It’s a numbers game — is there a reasonable risk that the cause of action in question is a bad-faith claim invented for the purpose of identifying an anonymous defendant? For the traffic case, that answer is no. And for the peer-to-peer downloading suit, that answer is also no. What’s the *realistic* hypo in which the RIAA is secretly trying to identify anonymous defendants in order to silence their *speech*? Sure, you can imagine *unrealistic* ones. But you can also imagine unrealistic ones in which a complaint alleging a traffic accident raises First Amendment issues. Why should the RIAA get treated more *harshly* than the hit-and-run defendant?

  10. Bruce Boyden says:

    More harshly than the hit-and-run plaintiff, I mean.

  11. Bruce,

    You’re using a motivation test, going to the state of mind of the plaintiff. I don’t think a bad motivation approach is a good approach. In many cases that involve speech, the motivation of the plaintiff (or prosecutor in a criminal case) isn’t to get at the speech, it is to get at conduct believed to be tortious or criminal. But that still doesn’t mean that speech can’t be implicated to a nontrivial degree in the process.

    Suppose that there’s a very prominent anonymous blogger — let’s say Article III Groupie before David Lat unveiled himself. And let’s say that on his blog while still anonymous, he posted the “Everybody’s a Winner at Nixon Peabody” song. Nixon Peabody seeks to subpoena his identity. Ok? Here, we have an arguable fair use claim, as well as the risk that an anonymous blogger will get unmasked. Now, for Nixon Peabody, the motivation isn’t to unmask the anonymous A3G — it is to sue for copyright infringement. But the collateral damage is that a longtime anonymous speaker will no longer be anonymous.

    The RIAA should be treated more harshly because it is seeking information in an area that is much more interconnected with free speech. Fair use is a fuzzy concept, yet it is essential to reconcile copyright with free speech. Now, many courts have adopted rather narrow readings of fair use, but I wonder whether such narrow readings of fair use still comport with free speech.

    For example, consider obscenity. Whenever in any given case, a judge or jury concluded that something was obscene, the Supreme Court would review de novo to determine whether or not it was appropriately determined to be obscene. Applying the test for obscenity in too broad a way that encompassed protected speech would be unconstitutional. And likewise for copyright. To overclaim copyright protection in a manner that would emcompass protected speech would also be unconstitutional, right?

    The problem is that the Supreme Court hasn’t wanted to really delve into the full implications of speech and copyright, but if you apply First Amendment doctrines in other contexts, it raises a lot of questions about copyright law. What the Court has held thus far is that copyright law can be reconciled with the First Amendment in part because of fair use. But if the fair use doctrine is applied in too narrow a manner, is the reconciliation still valid?

  12. Bruce Boyden says:

    Happy New Year, Dan! I’m a little unclear what your argument is. The point of tests like Cahill’s, as I understand it, is to make sure the plaintiff has a real claim. It’s not to weigh valid claims supported by evidence against the First Amendment, and to refuse to let some *valid* claims go forward because they might somehow impinge on speech. (That’s a role for a defense, if there is one.) The idea is to prevent meritless claims from being used to unmask anonymous defendants. So if there is little chance of such a stalking-horse claim, then there is no reason for Cahill-type review.

    Your argument appears to be in the form: (1) Any cause of action against an anonymous defendant that involves speech must get Cahill-type review. (2) Some copyright claims involve speech. Therefore, (3) all copyright claims against anonymous defendants must get Cahill-type review. (3) does not follow from (1) and (2). The fact that some copyright claims involve speech-type activities (e.g., parodies), doesn’t mean ALL copyright claims do (e.g., downloading).

    In order to get to (3), I think you need to modify (1) and (2) to say (1′) Any cause of action against an anonymous defendant that *might* involve speech must get Cahill-type review. (2′) All copyright claims *might* involve speech. Therefore, (3). But the problem is, (2′) is not limited to copyright — any cause of action at all might involve speech, even if speech-type activity is not what’s being pled. E.g., my hit-and-run hypo. So, unless your argument is that Cahill review should be applied in ALL John Doe cases — and you seem reluctant to embrace that — then I think you have to explain why only *some* complaints that do not on their face involve speech-type activity by the defendant must get Cahill review, but not others.

  13. Bruce,

    There’s a premise in my argument that you’re not really recognizing — that in many cases, it isn’t very easy analytically to separate copyright infringement from speech, at least not in a mere cursory review of an RIAA complaint’s allegations.

    I agree that Cahill-type review should not be triggered anytime there’s a remote possibility that speech will be involved. But if there’s a nontrivial possibility, then Cahill should apply.

    So, a court confronting a subpoena for copyright infringement would first examine (1) whether there’s a nontrivial possibility that the subpoena would implicate First Amendment activities; and if so, then (2) apply Cahill-type review.

    So we agree that if (1) isn’t established, then there’s no Cahill-type review. But we probably disagree about how often (1) might be established. Should courts just accept the allegations of the plaintiff to this effect? I’m not sure what the standard should be for analyzing (1), but I wonder whether courts should do more than merely accept whatever allegations the RIAA makes on their face. I agree that at this point, a Cahill-type standard is too much, but shouldn’t there be some kind of review?

    As to the frequency of (1) occurring, there are even downloading cases that might involve speech. Moreover, there are cases where the copyrighted information being traded is not speech, but where there is accompanying speech by the speaker that will be identified if the subpoena is issued. So there are two types of cases where speech might be involved: (a) where the copyrighted material might be used in a manner that constitutes speech (i.e. fair use, parody, etc.); or (b) where the anonymous alleged copyright infringer has engaged in anonymous speech (independent of the copyright infringement) that would be identified if the subpoena is issued.

    Now, (b) presents a trickier case. The RIAA might not care about this accompanying speech, but as I’ve argued, motivation shouldn’t be the test. The rationale of the anonymous speaker cases is that unveiling identities chills speech, and that can occur regardless of what the motive is.

  14. chilled says:

    You’re using a motivation test, going to the state of mind of the plaintiff. I don’t think a bad motivation approach is a good approach.

    Professor Solove,

    I disagree—at least in part.

    According to John Bringardner, in his December 4 article, “A Bounty of $5,000 to Name Troll Tracker”, the Chicago patent attorney, Ray Niro, who is advertising the bounty on the anonymous blogger, has stated:

    “I’ll offer $5,000 to anyone that can provide information that leads me to the identity of Troll Tracker,” Niro says, announcing the bounty publicly for the first time here in IP Law & Business. “I view these people [anonymous bloggers] as know-nothings,” he says, “afraid to reveal their identity.”

    The DoJ Civil Rights Resource Manual documents Elements — 18 U.S.C. 241 — Criminal Civil Rights Conspiracy. Those elements include, among others:

    The purpose of the conspiracy must be to injure, oppress, threaten, or intimidate one or more persons.

    According to Mr. Niro, in the first cited article, he believes that the anonymous blogger is “afraid”, and I think that Mr. Niro’s state of mind and intent is critical here.

  15. Eli Rabett says:

    There are other serious laws about universities (and their employees) giving any information about students to outsiders (moms do NOT get to ask about how well their kids are doing, or rather they can ask but as an instructor you can’t answer without the students informed consent). This could play in here?