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An Open Letter About Due Process to Universities Whose Students Are Targeted by the RIAA
Friday, March 09 2007 @ 07:58 PM EST

Ray Beckerman, Esq., who blogs at The Recording Industry vs. The People has written an Open Letter to Universities Whose Students Are Targeted by the RIAA. Now that I've read the deposition of the RIAA's expert, which so many here found technically deficient, I decided to publish the Open Letter here, so that fundamental due process rights are made known as broadly as possible.

As you know, I don't file share and I don't recommend it or approve of it, except where it is legal. I believe in obeying the law. But that isn't the issue here. The issue is the US Constitution and basic due process rights that the accused are afforded by our system of law.

As you know Groklaw's purpose includes to increase respect for the law by helping folks to understand it, and I feel confident that this is just another matter of needing to educate the courts regarding the technical issues. Judges become judges because they care about fairness and justice, but they can only know what they know, and by educating them on the technical issues, they can become aware of the very real danger, as far as I can see, of finding innocent people "guilty" by sidestepping due process and accepting "evidence" that would never be allowed in if the matter were, say, theft of a Big Mac or something the courts understand better than they do the technicalities of filesharing. Note in the Open Letter the links showing that neither Canada nor the Netherlands allows such "evidence" due to its unreliability. 50 Ohio University students have already received letters, so Ohio-based lawyers are needed, if any wish to help out and are in a position to do so.

So with that goal and purpose, I am reproducing his letter here.

Friday, March 09, 2007

Open Letter to Universities Whose Students Have Been Targeted by the RIAA

This is an historic opportunity for you to take steps to make the RIAA's litigation campaign more of a level playing field.

The way things are:

Once the RIAA has obtained whatever "settlement" money it can squeeze from students and parents willing and able to pay the money, and to agree to the other extortionate demands in the RIAA's standard nonnegotiable form 'settlement' agreement, it will bring a "John Doe" proceeding against the others. Contrary to the spirit of the Federal Rules of Civil Procedure, it will do everything it possibly can, in that proceeding, ex parte. It will file the complaint without notice to anyone, and submit the ex parte discovery order application without notice to anyone. Then, once it's gotten an ex parte order signed by the judge, it will give minimal notice to you with minimal notice to your students, of an order which has already been entered.

Typically, "John Doe" will receive only a copy of a subpoena and a copy of the order with a letter from you, and will have just a few days, or at most a couple of weeks, to respond before his or her personal confidential information will be divulged. Meanwhile, if the student were to confer with a lawyer the lawyer doesn't know what to say, because he or she has no copy of the underlying summons and complaint, no copy of the papers upon which the ex parte order is based, and no copy of the judge's rules, all of which a defendant normally does receive in any normal litigation.

What you should, at a minimum, do for your students.

What you can do is insist that the RIAA stipulate with you that (a) any motion for an order granting discovery of the students' identities will be on notice, both to you and the students, rather than ex parte, (b) that the RIAA must furnish to you, for each "John Doe", a copy of the summons and complaint and exhibits, a full set of the motion papers, and a full set of all other court documents which are required to be served on the defendant when an action is initiated... for you to distribute to the affected students, before -- not after -- the motion is to be heard.

If the RIAA refuses to so stipulate, you should go to Court yourself and get an order requiring them to comply with these fundamentals which are required by due process.

What you should also do.

The courts have held that in order for a claimant to get an order for discovery of confidential names and addresses of a John Doe in a copyright infringement case, it must make a prima facie evidentiary showing, based on admissible evidence, that it has a case for copyright infringement against each "John Doe". See authorities cited in our memoranda of law:
http://www.ilrweb.com/ viewILRPDF.asp?filename=warner_does1-149_memooflaw*
http://www.ilrweb.com/ viewILRPDF.asp?filename=warner_does1-149_replymemo*

Since the RIAA has been proceeding ex parte, however, and since they haven't been challenged by the ISP's, judges have signed off on the orders even though the applications were supported by conclusory, hearsay, opinion statements of suspect reliability which would never be considered admissible in any court in the United States. (Compare the courts of the Netherlands and Canada, where the ISP's challenged the application for "John Doe" information, and the Courts refused to grant the discovery orders, due to the unreliability of the RIAA's investigative "method").
http://recordingindustryvspeople.blogspot.com/ #Foundation_v_UPC_Nederland*
http://recordingindustryvspeople.blogspot.com/ #BMG_v_Doe(Canada)*

The lack of reliability of the RIAA's "investigatory" technique is becoming more and more well documented. See, eg. the February 23, 2007, deposition of the RIAA's expert.
http://www.ilrweb.com/ viewILRPDF.asp? filename=umg_lindor_070223JacobsonDepositionTranscript*

See also expert witness statement of Prof. Pouwelse and Dr. Sips:
http://www.ilrweb.com/ viewILRPDF.asp?filename=foundation_upcnederland_witnessdeclaration*
and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy:
http://www.ilrweb.com/viewILRPDF.asp?filename= capitol_foster_amicus

Accordingly, we believe you should oppose the RIAA's application for an order of discovery.

Likewise, if you learn of the RIAA obtaining such an order ex parte, you should move to vacate the order.

Typically, the RIAA joins a number of "John Does" in a single suit, in order to save itself money, even though under the Federal Rules such joinder is clearly improper. See, e.g. In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004) http://www.eff.org/IP/P2P/ RIAA_v_ThePeople/20041117_austin_severance_order.pdf
In fact, the foregoing case specifically enjoined the RIAA to cease and desist from continuing its practice of joinder, an injunction which the RIAA has simply ignored. Opposing the RIAA's deliberate misjoinder of unrelated "John Doe" defendants is another thing you can do to assist your students and their families in achieving a more level playing field.

A third thing you can do is point out to the Court that there is no known cause of action for "making available", which is the basis of the RIAA's suits, in the Copyright Act. See Elektra v. Barker, argued January 26, 2007, and awaiting decision.

Sincerely yours,

-Ray Beckerman


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