On July 31, a Boston federal jury ordered physics Ph.D student Joel Tenenbaum to pay $675,000 in damages to various recording companies for willfully infringing 30 songs by downloading them over KaZaA — an award of $22,500 per song. It was only the second file-sharing case to go to verdict in the Recording Industry Association of America’s (RIAA) anti-downloading litigation campaign, along with that of Jammie Thomas-Rasset, though thousands are settled or pending.

Each day of the trial was thoroughly covered by Ben Sheffner, guest reporting at Arstechnica. JoelFightsBack — Tenenbaum’s defense team’s blog — provides extensive information about the case, including firsthand accounts from Tenenbaum himself. Ray Beckerman argues that the most salient legal issues remain unresolved, and that the plaintiffs ought to have been held to higher evidentiary standards in order to establish infringement and entitlement to statutory damages higher than the minimum available.

Defending Tenenbaum was Harvard Law School professor Charles Nesson, whose unusual litigation tactics have been much blogged about since he took the case in September 2008.

Over the months leading up to the trial, a series of adverse rulings against Tenenbaum made it increasingly difficult to present his case as defense counsel Nesson had planned. District Judge Nancy Gertner dismissed Tenenbaum’s abuse-of-process claim against the plaintiffs and denied his motion to join the RIAA in that claim; excluded four of his proposed expert witnesses and limited the scope of a fifth; denied a motion to exclude all MediaSentry evidence, on which the plaintiffs relied to link the file-sharing with Tenenbaum’s computer; and excluded all potential jurors who admitted to using peer-to-peer networks to obtain music, a ruling which Nesson protested deprived Tenenbaum of a trial by a jury of his peers.

Perhaps most damaging, however, was Judge Gertner’s ruling, less than eight hours before the start of trial, barring Tenenbaum from presenting a fair use defense to the jury. Nesson had planned to argue that, in addition to the four factors laid out in the fair use statute, 17 U.S.C. § 107, the jury was free to and ought to consider additional factors grounded in the fundamental concept of fairness, in determining whether Tenenbaum’s downloading was a permissible use of the copyrighted works.

Tenenbaum did not deny downloading the 30 songs in question; in a surprising turn, he took the stand on the final day of testimony and acknowledged downloading and distributing all 30 songs at issue. Following his testimony, Judge Gertner granted the plaintiff’s motion for directed verdict on infringement, leaving the jury only to consider whether such infringement was “willful” and determine damages. The plaintiffs elected to recover statutory damages under 17 U.S.C. § 504(c), meaning if the jury made a finding of willfulness, they could award damages within the range of $750 to $150,000 per song (or up to $30,000 per song if they did not).

Nesson argued that Tenenbaum’s downloading was not culpable; that he was simply like every other kid of his generation who discovered easy access to a world of free music when Napster appeared back in 1999; that he neither intended nor caused any harm; that for a youth who loved music merely to click on his computer, without considering or understanding a copyright law that never contemplated such technology, was not akin to stealing. The plaintiffs, by contrast, painted Tenenbaum as a repeated and knowing infringer who consistently took action to evade the law.

Tenenbaum may appeal the damages award as unconstitutional as well as one or more of the adverse motions rulings. There is significant debate over whether it is appropriate or even legal for the RIAA to initiate individual suits like the one against Tenenbaum to “teach other people a lesson,” a purpose the plaintiffs openly acknowledged on the stand during the trial.

In earlier coverage of the Tenenbaum case, JOLT Digest has reported on the First Circuit’s ruling overturning Judge Gertner’s decision to allow a webcast of the Tenenbaum trial and has commented on the merits of allowing public access to courts via the Internet.

By Sharona Hakimi – Edited by Anthony Kammer
Arista Records LLC v. Usenet.com, Inc., June 30, 2009, No. 07 Civ. 8822
Opinion

On June 30, 2009, a New York District Court granted summary judgment for the Recording Artist Association of America (RIAA) in its case against Usenet.com.  Judge Harold Baer of the Southern District of New York held the website liable for direct, contributory, and vicarious copyright infringement.  Additionally, Judge Baer issued discovery sanctions against Usenet.com for engaging in a wide array of litigation misconduct that included wiping hard drives, sending witnesses to Europe to avoid depositions, and stonewalling legal questionnaires.  A magistrate judge will soon determine the appropriate remedies.

Ars Technica summarizes the litigation, providing background to the case and the history of the website.  Greg Sandoval of cnet news offers a short recap of the case.  Billboard.biz writer Ben Sheffner outlines the potential precedential impact of the decision.  The RIAA released a statement regarding the victory on its Music Notes Blog.

In a suit that arose in October 2007, the RIAA sued Usenet.com, Inc., Sierra Corporate Design, Inc., and the companies’ director and sole shareholder, Gerald Reynolds.  The RIAA accused the company of allowing and encouraging users to pay up to $19 a month to gain access to their copyrighted material.  Usenet.com is a commercial provider of access to Usenet newsgroups, which offer “binaries” groups that are used to share music, movies, and pictures without paying labels or publishers.  At trial, the RIAA offered evidence that the Usenet.com marketers had targeted young people who use file-sharing programs, promising that Usenet.com was “a safe alternative to peer-to-peer file sharing programs [record companies] were getting shut down.”

The District Court held that Usenet.com satisfied the Cablevision test of direct infringement because the company took active steps and routinely exercised control over its servers and customers’ ability to obtain copyrighted music files.  Significantly, Judge Baer held that Usenet.com was guilty of secondary infringement (vicarious and contributory) and could not claim protection under the Sony Betamax decision, which allowed companies to avoid liability for contributory infringement if the device they create is “capable of significant non-infringing uses.”  While Sony had no control over what its buyers did with its products, Usenet.com maintains an ongoing relationship with its customers.  

During litigation, the RIAA accused Usenet.com of withholding evidence such as emails, as well as destroying seven hard drives that held employee-generated data.  Usenet.com was also accused to providing false information and sending employees to Europe to avoid depositions.  The judge made a point of noting that there was “strong evidence of extreme wrongdoing,” and he refused to allow the defendants to assert an affirmative defense under the Digital Millennium Copyright Act’s (”DMCA”) safe harbor provision. 

The DMCA safe harbor provision protects Internet service providers from being held responsible for criminal acts committed by users.  Without the safe harbor defense, Usenet.com had no case to make, and Judge Baer therefore issued summary judgment for the recording industry.  A magistrate judge will determine an injunction and damages in the next few weeks. 

In a statement released on its Music Notes Blog, RIAA spokeswoman Cara Duckworth stated, “We’re pleased that the court recognized not just that Usenet.com directly infringed the record companies’ copyrights but also took action against the defendants for their egregious litigation misconduct. 

While peer-to-peer networks like BitTorrent account for far more pirated downloads than Usenet services, copyright owners are particularly concerned about Usenet.com.  Usenet users demonstrate a willingness to pay for online content, and therefore these downloads are more likely to represent lost sales.  Although Usenet.com is only one portal to Usenet services, this can be seen as the biggest blow to the Usenet network to date.

Founders of The Pirate Bay Internet Piracy Site Convicted, Sentenced to Prison

The New York Times reports that on April 17, a Swedish court convicted four men, including the three founders of The Pirate Bay website, on charges of promoting copyright infringement. The men were sentenced to one year in prison and ordered to pay the equivalent of $3.6 million in damages to the holders of the infringed copyrights. The Pirate Bay continues to provide links that allow users to download thousands of copyrighted songs, movies, and computer programs. John Kennedy, chief executive of the International Federation of the Phonographic Industry, said that the copyright holders will continue their efforts to shut down the website.

Electronic Frontier Foundation Supports Block on Gambling Domain-Name Seizure

The Electronic Frontier Foundation, in conjunction with the Center for Democracy and Technology and the American Civil Liberties Union of Kentucky, filed an amicus brief to the Kentucky Supreme Court on April 17. The brief supports the blocking of a Kentucky state court order, which requires domain name registrars outside of Kentucky to release control of over 100 domain names associated with gambling websites. A Kentucky court of appeals had previously blocked the trial court’s seizure order, ruling that Kentucky’s ban on “gambling devices” did not extend to internet domain names.

South Korean Blogger Acquitted on Charges of Spreading False Information

On April 20, a South Korean court acquitted Park Dae-sung on charges of purposely harming market sentiment. Reuters reports that Park had been accused of causing instability in the South Korean currency by spreading false information on his blog. Park had previously gained notoriety for posting accurate predictions of future economic troubles, including the collapse of Lehman Brothers. The court reasoned that even if Park did spread false information over the internet, he could not be convicted because he lacked the necessary intent to harm the public interest.

British Web Tracking Tool Violates European Union Privacy Laws

This Tuesday, the European Union issued a legal warning against Britain for not applying EU data privacy rules to Phorm, a new advertising technology that tracks the Web movements of internet users. BT, Britain’s largest service provider, used Phorm without its customers’ consent during 2006 and 2007. As reported in the New York Times, the European telecommunications commissioner stated that the “European privacy rules are crystal clear: a person’s information can only be used with their prior consent.” The Associated Press describes further actions the European Commission may take if Britain does not adequately enforce European privacy laws.

Proposed Bill Would Remove Sales Tax “Loophole” for Online Purchases

CNET News reports that a congressional bill expected to be introduced early next week “would rewrite the ground rules for mail order and Internet sales.” Under existing law, consumers are responsible for reporting and paying the amount owed for online and mail order purchases under their home state’s sales tax. According to CNET, “California’s Board of Equalization estimates the state lost $1.34 billion in 2003 because residents aren’t paying use taxes–and attributes $208 million of that to online purchases.” The proposed bill could incorporate the Streamlined Sales Tax Agreement, which encourages states to simplify their sales tax codes in order to help online retailers collect sales taxes more easily.

Swedish Anti-File Sharing Law Decreases Traffic, Increases Legal Downloads

Enforcement of Sweden’s Intellectual Property Rights Enforcement Directive (IPRED) law began on April 1, 2009. The Local notes that the law resulted in a 30% decrease in online traffic, as well as a doubling of legal music downloads. T3 reports that the in response to the IPRED enforcement, The Pirate Bay plans to offer a Virtual Private Network service that will make internet users more anonymous.

File-Sharing Cases in Courts Around the World
In February, the four men behind the popular file-sharing site The Pirate Bay went to trial in Stockholm, Sweden.  They stand accused of helping millions of Internet users illegally download protected movies, music, and computer games. The defendants – Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi, and Carl Lundström – face up to two years in prison and a fine of 1.2 million kronor (US $143,529) if convicted of being accessories and conspiracy to break Swedish copyright law.  The case has made headlines not only because of the substantive legal issues, but also because Defendant Peter Sunde, co-founder of The Pirate Bay, has called for the court’s proceedings to be as open as possible. The Swedish court granted Sunde’s motion to allow coverage of the proceedings without much resistance, and SVT, a public broadcaster in Sweden, has provided streaming audio webcasts webcasts of trial.

A similar situation is unfolding in the United States in a high-profile case involving issues very similar to those of The Pirate Bay case, although here there has been significant resistance for the defendant’s calls to open the proceedings to the public.  Joel Tenenbaum is one of the tens of thousands of defendants being sued by the RIAA for allegedly violating their members’ copyrights by distributing files through P2P file sharing software. However, unlike the vast majority of the defendants in these cases, he chose to litigate rather than settle his case rather than settle, with the help of Harvard Law School Professor Charles Nesson and a team of his students. With Professor Nesson’s assistance, Tenenebaum filed a motion similar to Sunde’s, requesting his trial be broadcast live via the Internet. Tenenbaum’s motion asked the Court to exercise its discretion under the Court’s local rules to allow Internet access to the courtroom by authorizing the Courtroom View Network (”CVN“) to provide audio visual coverage of the proceedings in this case over the Internet.

Tenenbaum’s Arguments for Internet Access
In the motion, Tenenbaum argues that Internet access to the litigation will allow lawyers, professors, students, and reporters to keep abreast of the most recent legal developments in the case.  Moreover, he argues a live stream over the Internet would provide an interested – and increasingly tech-savvy – public with access that will assist in educating the public about the issues involved in the RIAA’s unprecedented litigation campaign.  This is arguably in line with the RIAA’s litigation strategy, which was at least partially designed to educate the public about the legality of file sharing. Finally, Tenenbaum argues that granting access over the Internet is valid under Local Civil Rule 83.3, which permits proceedings to be recorded, photographed and broadcast “by order” of the Court. See D. Mass. Local Rule 83.3.

The only argument the RIAA provides in opposition is that Massachusetts U.S. District Court Judge Nancy Gertner has no authority under Local Civil Rule 83.3 to permit such an order.

Ultimately, Judge Gertner allowed web casting of a legal hearing in the Tenenbaum case.  In her ruling, she emphasized the unique relation of the Tenenbaum case to the Internet:

“In many ways, this case is about the so-called Internet Generation – the generation that has grown up with computer technology in general, and the internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the internet.”

The RIAA immediately appealed the order. In its response, the RIAA reiterated what it had argued in its original opposition: that the proposed reading and broadcasting of the district court proceedings was barred by Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts.  The RIAA  also argued that the ban established by Local Rule 83.3 specifically tracked the Policy Statement adopted by the Judicial Conference of the United States regarding the recording and broadcasting of proceedings in the district courts.

The First Circuit has agreed to hear oral arguments on April 7^th, 2009.

The Broader Debate over Electronic Access to Courtroom Proceedings
The question of whether to allow live-broadcasts of publicly available legal proceedings via the web is just the newest question in a long-running debate within the legal community on how to provide public access to the courts.  The traditional view of open public proceedings would limit access to those members of the public that can physically attend the court proceedings.  The debate has centered on whether this view should yield to the modern media’s attempts to provide broader public access via new technologies.  The issue is hardly new, as for many years the issue of cameras in the courtroom has challenged long-standing norms of the judicial process.

Although courts vary widely – even within the same jurisdiction – in their tolerance of electronic recording and distribution of their proceedings, the trend is generally towards providing greater access.  For instance, New York courts have issued conflicting opinions on the issue, ruling that camera coverage of a criminal trial without a defendant’s consent does not automatically warrant reversing the defendant’s conviction, despite precedent requiring that cameras must be banned throughout a trial.  However, the law is clearer in other states.  For example, courts in Delaware, Ohio and New Jersey are already regularly webcasting their proceedings.  Moreover, the trend towards greater access seems to be accelerating.  In February 2009, the Minnesota Supreme Court ordered a pilot program be established to give electronic media access to court proceedings with a judge’s approval.

Still, traditionalists remain resistant to changing the way in which court proceedings are reported, and this resistance may temper the adoption of broad electronic access to the judicial system.  The infamous O.J. Simpson murder trial gave critics an example of the potential downsides of televised trials, as critics argued that the cameras cheapened the proceedings and promoted posturing by lawyers.

Additionally, the United States Supreme Court notably prohibits televised coverage of its oral arguments. Recently Supreme Court Justice Scalia was asked why cameras are not allowed in the Supreme Court even though the court hearings are open, transcripts are available, and the Court’s justices are open enough to discuss proceedings while ‘out on book tours.’  Justice Scalia said he originally favored televising Supreme Court proceedings when President Reagan appointed him in 1986.  Yet he said that over time, he has come to believe that “most people will only see 30-second takeouts” that would fail to give an accurate picture of the proceeding. Justice Scalia asked “why should I be a party to the miseducation of the American people?”

There is good reason to question Justice Scalia’s argument. The release of audio-taped oral arguments from the Supreme Court, which started only a few years ago, has not caused any well-documented detrimental effect on our judicial system.  In fact, the audio recordings have helped Americans better comprehend the law, and provide a glimpse of legal practice on the nation’s highest level.  As Ben Sheffner points out, if it’s so dangerous to allow “30-second takeouts” to be shown, why allow newspaper reporters in the courtroom? After all, reporters do not reprint entire oral arguments verbatim; rather, they pick and choose snippets for their articles that we call “quotations” — which are the print version of “takeouts.” No doubt quotations or “takeouts” can “miseducate.” As one of Scalia’s predecessors once observed: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Public Trials for the Twenty-First Century
In spite of the substantive legal distinctions between the Tenenbaum and The Pirate Bay cases, both involve an issue of great interest to a very large number people – the legality of file-sharing over the Internet.  The public’s profound interest in this issue is obvious, primarily due to the vast numbers of Internet users that have used file-sharing services and the high-profile litigation over the last decade against both file-sharing services and individual users.  This high level of interest is reflected by the hundreds of news stories and blogs pieces written lawyers, scholars, and others about the Tenenbaum case.  Moreover, the issue of Internet access to the Tenenbaum proceedings has garnered support even from those who otherwise oppose Tenenbaum’s alleged behavior.

The RIAA’s opposition to webcasting the trial is particularly odd, since the organization has stated its goal with the litigation campaign is to educate the public and deter against further piracy. It seems the best way to broadcast this message to the appropriate audience (Internet users) would be allowing access to the case over the Internet.  If the RIAA is serious in wanting to spread awareness about the business and legal issues facing the music industry – and copyright in general – it should welcome any increased attention that Internet access might bring to the Tenenbaum case.

The First Circuit should follow the lead of the Swedish court in The Pirate Bay case and uphold Judge Gertner’s decision allowing Internet access in the Tenenbaum case.  The fundamental right to a public trial should be brought into the digital age by making court proceedings available via the Internet.  Providing such access in the Tenenbaum case is critically important precisely because the legal issues involved are substantively about Internet use.  It is time to make “public” trials truly public by opening them up to the masses via the Internet.

*Ms. Rosenbaum is one of the students assisting Professor Charles Nesson on Joel Tenenbaum’s Defense Team.

Arista Records LLC v. Does 1-16
N.D.N.Y., February 18, 2009, No. 1:08-CV-765
Order

On February 18, 2009, United States Magistrate Judge Randolph F. Treece of the Northern District of New York denied a motion to quash a subpoena that would force the State University of New York at Albany (SUNYA) to reveal the identities of 16 students (“Doe Defendants”) alleged to have illegally shared music files.

The defendants raised four claims: “(1) the Subpoena is an infringement of their First Amendment Rights, (2) the Court lacks personal jurisdiction over them, (3) the Complaint fails to state a cause of action; and, (4) the joinder of all Doe Defendants into this single action is improper.” The court ruled against the students on all four of these arguments. The court dismissed the students’ First Amendment claim to the right to privacy by declaring that the “modest First Amendment right to remain anonymous when there is an allegation of copyright infringement” must be balanced against a “copyright owner’s right to disclosure of the identity of a possible trespasser of its intellectual property interest,” and found that in this case the balance weighed on the side of disclosure. The court found the students’ personal jurisdiction and joinder challenges unpersuasive, as their merits cannot be properly determined while identities of the defendants had not yet been disclosed. It similarly denied the claim that the complaint failed to state a cause of action, holding that this claim is essentially a 12(b)(6) motion. Such a motion, the court reasoned, is procedurally improper at this point, as no complaint has been officially served on the Doe Defendants.

The students also argued that MediaSentry, a company retained by the Recording Industry Association of America to assist the plaintiffs with their investigation, illegally obtained evidence, and therefore this evidence cannot be used in a civil suit against them. MediaSentry gathered the IP addresses of 16 students who allegedly committed copyright infringement and believes that SUNYA, as the students’ ISP, can determine their identities based on the IP addresses. Although the court remains uncertain whether MediaSentry violated New York’s General Business Law § 70 by not obtaining a license to act as a private investigator, it nonetheless stated that the students ”are hardly in a position to claim trespass, force, or fraud by MediaSentry” and that any disputes about the admissibility of evidence should be saved for trial. Moreover, the court noted the lack of any authority for the proposition that illegally obtained evidence must be excluded from a civil trial.

Ben Sheffner, in a commentary posted on his Copyrights & Campaigns blog, agrees with the court’s ruling that the evidence gathered by MediaSentry should be admissible, saying that arguments to the contrary have always been “red herrings.” Sheffner argues that MediaSentry “simply accesses open peer-to-peer networks, where users have no reasonable expectation of privacy.”

Ars Technica’s Nate Anderson has reported on universities placed in similar situations to that of SUNYA that have refused to turn over the identities of students. According to Anderson, while the universities want to respect the rights of copyright holders, they reject the music industry’s premise that IP addresses can be reliably linked to the individuals that allegedly infringed on their copyright. The common sharing of computers in school environments and the prevalence of wireless networks on campuses are cited as common reasons why the owner of an IP address many not be responsible for copyright infringement committed using that IP address.

Interscope Records v. Leadbetter, February 6, 2009,  No. 07-3582
Court of Appeals Ruling
District Court Ruling

On February 6, 2009, the Ninth Circuit Court of Appeals affirmed the decision of a W.D. Washington District Court denying defendant Dawnell Leadbetter’s motion for attorney’s fees and costs. In December of 2006 a group of recording companies voluntarily dismissed their claims against Leadbetter in an online file-sharing copyright infringement suit. Leadbetter subsequently sought attorney’s fees, which the court denied on the grounds that Leadbetter was not a “prevailing party.”

The Copyright Act, 17 U.S.C. § 505, provides that a prevailing party may be entitled to reasonable attorney’s fees in a copyright action. However, because the claims against Leadbetter were voluntarily dismissed without prejudice, the Court of Appeals found that she was not entitled to attorney’s fees. The district court and appellate court both looked to the standard established in Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), that a “prevailing party” is one who has received judgment on the merits or “settlement agreements enforced through a consent decree.” The district court reasoned that because the record companies claims were dismissed without prejudice, Leadbetter could not be considered a “prevailing party.”

The EFF filed an amicus curiae brief in support of Leadbetter’s motion for attorney’s fees. In their brief, they argued that these record labels, which are all members of the RIAA, are participants to a larger campaign that has “entangled innocent internet users in its litigation dragnet.” By awarding attorney’s fees in this case, the EEF stated the court would help “balance the overall equities in the RIAA’s nationwide campaign.”  The EEF contends that if individuals like Dawnell Leadbetter have to pay out of pocket for her fees, future innocent litigants will not stand up to the recording industry.  Instead, the EEF believes the public will “suffer under the misperception that such misguided theories are, in fact, the law.”

Though triggering a flurry of postings by anti-RIAA bloggers, this case is in fact non-precedential and unpublished. It is unclear if this decision will play any role of actual significance in future online copyright infringement actions. Even so, according to Ben Schaffer of Copyright and Campaigns, this case gave a “significant procedural victory to the recording industry,” sending a “message to defendants in such p2p cases that they should be forthcoming with information about infringing activity on their ISP accounts early in litigation.”
According to Schaffer, the suit arose when the  record labels discovered a KaZaA username “dawnlead@KaZaA” with 788 music files in its sharing folder. Believing the user to be Dawnell Leadbetter, the record companies filed suit.  However, after discovery, the labels decided it was actually Leadbetter’s fiancé and son who were the likely infringers. They therefore filed a motion of voluntary dismissal against Dawnell, which the district court granted without prejudice.

For the district court, the lack of prejudice was dispositive, distinguishing the case from Capitol Records, Inc. v. Foster, 2007 WL 1028532 (W.D. Okla. Feb. 6, 2007), a copyright action where attorney’s fees were awarded when the case was dismissed with prejudice. The court also distinguished the present case from Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941), where the defendant prevailed on a motion requiring clarification of the plaintiff’s complaint.

London-Sire Records, Inc. v. Does 1-4
D. Mass., No. 1:04-cv-12434
Court Order (hosted by Ray Beckerman)

On November 24th, Judge Nancy Gertner of the U.S. District Court for the District of Massachusetts rebuffed an attempt by major recording industry companies to force a university to reveal the identity of individuals who shared music through online peer-to-peer networks. Judge Gertner quashed a subpoena in London-Sire Records v. Does 1-4, a copyright infringement case in which the plaintiffs had served subpoenas on a number of internet service providers, largely colleges and universities, requiring them to divulge individual users’ identities based on their IP addresses.

Boston University wrote a letter to the court on September 23, 2008, stating that it could not positively identify three of the IP address users.  Judge Gertner treated the letter as a motion to quash the subpoena, and found that “the University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty.”  In quashing the subpoena, she expressed concern that “compliance with the subpoena . . . would expose innocent parties to intrusive discovery.”

The court’s order to quash the subpoena is available here.  Jacqui Cheng of Ars Technica provides background on the case. One Slashdot contributor notes that the order will provide a lesson to University IT departments served with similar subpoenas: if they are simply honest about the difficulty of identifying IP address users, the subpoenas may be quashed.  A P2PNet commenter suggests the order may “represent a death knell” to the music industry’s attempt to use universities as “copyright cops.”  A Chronicle of Higher Education writer wonders if the holding signifies that IP addresses might no longer be legally synonymous with personal identities.

While the court did not provide detailed legal analysis in its recent order, it indicated that it employed the test described in its March order (London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (2008)) regarding motions to quash similar subpoenas in the same litigation.  In the earlier order the court expressed concern that the subpoenas would interfere with the defendants’ anonymity, which is at least minimally protected under the First Amendment.

To balance the interests of the parties, the court adopted the test set out by the court in Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004).  This test considers five factors:

(1) a concrete showing of a prima facie claim of actionable harm, (2) specificity of the discovery request, (3) the absence of an alternative means to obtain the subpoenaed information, (4) a central need for the subpoenaed information to advance the [plaintiffs’] claim, and (5) the [defendants’] expectation of privacy.

In her March order, Judge Gertner granted certain motions to quash the subpoenas after implementing this test.  However, she instructed the plaintiffs that they could renew their motions for expedited subpoenas after furnishing the court with further information, which would allow it to better weigh the factors.  In her November 24th order, on the other hand, Judge Gertner did not invite a renewed request.

Judge Gertner’s March order was also notable for its rejection of the plaintiffs’ argument that their exclusive right under § 106(3) of the Copyright Act to distribute their works was violated when the defendants “made available” copies of their works for download.  The judge rejected this “making available” argument, instead agreeing with amicus Electronic Frontier Foundation that the defendants could not be liable for violating the plaintiffs’ distribution rights unless a “distribution” actually occurred.

While some commentators suggest that this holding might have significant implications for the recording industry’s numerous copyright infringement lawsuits, other recent court decisions indicate that this matter is not settled.  For instance, in April, a magistrate judge in West Virginia ordered Marshall University to reveal the identities of its students accused of copyright infringement, even though Marshall University argued that it could not confidently identify the correct students due to shared IP addresses and other technical limitations.