RIAA takes BU students all the way to the Court

Jim Stone, the director of consulting services at Boston University’s Office of Information Technology, said he spends a “ridiculous” amount of time each day dealing with lawyers, parents, students, subpoenas, lawsuits and law firms up in arms about RIAA copyright infringement law suits.

“Doing my job is the worst nightmare you could imagine,” he said at the Student Union’s digital rights panel discussion Monday. “I’m probably the most universally hated administrator on this campus because of it. I would like nothing better than to be out of this business.”

Stone is involved in sending out the Recording Industry Association of America’s pre-litigation letters to BU students who have been caught illegally sharing copyright materials over peer-to-peer networks.

The RIAA has sent thousands of such letters to universities across the country, asking administrators to pass on both cease and desist orders and notice of possible lawsuits. Because universities manage Internet services available to on-campus students, the RIAA reasons they can match up data the association collects with Internet use records to help the RIAA identity anonymous file sharers.

After the letters are sent out, Stone faces the heavy task of dealing with the subpoenas and lawsuits that follow. He is the go-between for the Dean of Students Office and the university’s general counsel, the office that sends legal notices to students and deals with their aftermath.

“I want to make it clear to students that the university does not monitor the network,” Stone said at the discussion, though he added he’s often accused of doing just that. Seventeen outside agencies monitor the networks and send the pre-litigation letters to the university.

“Philosophically, BU doesn’t want to stop or prevent students from doing whatever they want to do on the network,” he said. “We aren’t going to go out and try to play a cat-and-mouse game.”

THE MOUSE

In summer 2007, College of Arts and Sciences sophomore Paul Sawaya created a Facebook application called Jukebox, because, in his words, there was “no good way to put music on your profile page.” The program allowed other users to post links to websites offering music for listening, and in some cases, downloading.

Sawaya said he considered the possibility of fallout for copyright infringement, but thought he would not be held responsible for other users posting copyrighted material under the Digital Millennium Copyright Act’s safe harbor provision — a stipulation protecting online service providers against copyright infringement if they block access to copyrighted material when notified of its existence.

But on Feb. 14, Sawaya received a takedown notice from the RIAA in an email and letter. The letter detailed a list of 1,500 songs hosted on his application that were infringing RIAA copyright. His application hosted 44,000 songs in total.

Sawaya said he tried contacting the RIAA to discuss the situation, “but they were very unhelpful.”

Eventually, he was contacted by the man who had sent him the letter, RIAA Vice President of Piracy Mark McDevitt, and worked out an agreement that he will match every song on his database with a list of the association’s copyrighted songs.

Computers and the Internet mean copyright law needs to be changed, Sawaya said.

“I think I should be free to share whatever copyrighted music I want with everyone, as long as I’m not selling it,” he said. “It’s the law that has to change.”

Sawaya said students who settle out of court do not do so because they did not understand the law in the first place; they just do not take the law seriously.

“Most people think it’s kind of bullshit that it is illegal,” he said.

Still, Sawaya said the RIAA is not playing on people’s ignorance of copyright law — there is just not much people can do when they get their letter, he said.

On occasion, the RIAA does not even issue a subpoena, but it uses legal threats against universities to get them to turn over students’ names, Sawaya said. When a university receives a pre-litigation letter, the RIAA does not know the identity of the illegal file sharer.

Even if the university does not reveal the identity of the Internet user, but the individual decides to settle out of court, the RIAA will then be able to identify the person through credit card payments.

One woman accused of file sharing requested a jury trial and was charged $220,000 for 24 songs, Stone said. The case is currently in appeal, he said.

The RIAA suits have a greater implication on the relationship between students and their university, he said, because there is a threat their school will turn their names over to the association.

“It doesn’t create trust in people,” Sawaya said.

THE MAN

In a March ruling on lawsuit brought against Massachusetts students, including two from BU, a federal court commented on the role of third-party investigator MediaSentry. The RIAA hired the agency to download music from anonymous peer-to-peer users connected to filesharing programs in an effort to catch infringers.

Armed with this information, the music industry heavyweight went to BU, demanding the identities of anonymous file sharers. On March 31, Judge Nancy Gretner of the U.S. District Court in Boston quashed an RIAA attempt to obtain the identities of these students, who the group said had committed copyright infringement by using online file sharing programs.

The court ruled that copyright infringement does not necessarily occur when individuals make music available through peer-to-peer networks. Gretner cited the difference between making music available online and actually copying it for profit. The RIAA’s attempts to learn the identities of people using a particular Internet protocol address — a unique number assigned by a network to its users, but which usually floats on college networks — maybe too broad and can violate student’s expectations of privacy on college campuses, the court ruled.

Gretner, who requested a copy of BU’s policy on filesharing, ordered the school to maintain Internet use records until April 16, unless the quashed RIAA subpoenas were renewed.

Raymond Sayeg, a lawyer representing students entrenched in RIAA law suits, said the association’s subpoenas were not renewed by April 16. Sayeg said he has not gotten any response from BU, and so does not know if the records have been destroyed.

Sayeg said he knew of no other rulings in the Massachusetts case against MediaSentry, following March 31. The case is still operating under the Jan. 2 cease and desist order, he said.

THE MAN SPEAKS

“We appreciate that the court found that we have viable copyright claims, that we have made a ‘concrete’ showing that infringement occurred, and that we have shown a real and legitimate need and right to the information,” the RIAA said in an emailed statement.

“We’re confident that the court will ultimately allow us to obtain the identifying information, as have courts across the country in similar cases. The Boston University computer network was used to access an illegal p2p site and steal music online,” the statement continued.

“There needs to be a strong message that breaking the law can have consequences,” the statement said.

BU computer science professor Azer Bestavros said in a June declaration supporting the defendants’ motion to quash the RIAA’s subpoenas that it is “not possible to distinguish between a music file obtained from a licensed, legal source and the same music file obtained illegally by downloading such filed from a remote user’s computer over a network and only listening to the downloaded files.”

This statement was a comment on the veracity of the Linares Declaration, filed in April 2007 by the RIAA’s Anti-piracy Legal Affairs Vice President Carlos Linares, which outlined the role of MediaSentry, the importance of identifying to copyright infringers, the subpoena process used and the reason Internet service providers must keep log files of user activities so copyright owners can identify the infringer.

“Such infringement inflicts great harm on the initial market for new works,” Linares said. “New recordings generally earn a significant portion of their revenue when they are first released, and copyright piracy during a recording’s pre-release or early release period therefore deprives copyright owners of an important opportunity to reap the benefits of their labor.”

Copyright law originally only applied to people who owned printing presses, but with the new age of the Internet and computers, copy machines were put into the hands of everyone, said Leonid Reyzin, a BU computer science professor, at the Union digital rights panel.

“Suddenly, the small area of law that was relatively small is affecting us all,” he said.

As more and more people deal with digital media and copyright laws, he said, there is a confusion and concern among Internet users, and they do not know what is legal.

“This is seriously stifling innovation,” Reyzin said. “We don’t know what we’re missing because of today’s copyright laws.”

THE MAN COMES TO TOWN

Jonathan Pasquale, chairman of the Union Technology Committee and a School of Management senior, said the group collaborated with the Dean of Students Office and RIAA representatives for the first of two panel discussions designed to promote awareness of the legal problems that can be caused by file sharing, the definition of digital rights and “what is going on with intellectual property.”

“There’s not really a defined line” between what constitutes sharing and stealing in the case of intellectual property, he said — intellectual property is “basically licenses,” and is not just an issue in the business market, but also in academia.

“Research is supposed to be shared, discussed, looked at, criticized, critiqued, but business isn’t like that,” he said. “It’s the same thing with music.”

Pasquale cited a lack of knowledge on the topic and said it was necessary for students to know what to do if they receive a pre-litigation letter from the RIAA.

“The students get freaked out, [and think], ‘Oh my God, I don’t have the three grand to go to court,” he said.

Pasquale said the only way students can settle the fees is to pay the RIAA by credit card, which gives the association all the student’s personal information without the subpoena.

BU is at a “very important time,” Pasquale said, pointing to Harvard University and the University of Oregon as models of schools that have stood up to the RIAA and announced they will not accept or distribute any letters regarding illegal file sharing that they receive.

“BU really needs to listen to the students,” he said. At some point, the school must decide if it will refuse to distribute the letters or “continue to be the mailbox for the RIAA.”