From "John Doe" Lawsuits to Policy Changes

The precedent set by the Washington D.C. District Court of Appeals decision was incredibly important in determining the future of legal actions against ISPs or not, since the RIAA could no longer procure the information they were seeking from the ISPs. According the EFF’s Case Archive, this decision means that “copyright holders cannot use pre-litigation DMCA subpoenas to get identifying information for peer-to-peer filesharers and must instead file John Doe lawsuits and seek the information using ordinary discovery processes.”[1] So that is just what the RIAA did.

John Doe lawsuits name “John Doe” as an anonymous defendant when the defendant’s identity is unknown. This allows the plaintiff to seek the identity of the defendant using the power of civil discovery procedure because there is an ongoing court cases, which is quite a different situation than the RIAA issuing subpoenas under the DMCA before they had filed any kind of formal court action. As a result, the RIAA began to target individuals with their lawsuits and specifically hotbeds for file sharing, like universities. In the fall of 2002, the RIAA sent over 2,000 pre-litigation infringement notices to universities around the country. Their responses to this notice varied. Some focused on educating their network users like the Missouri University of Science & Technology, which implemented a short quiz about peer-to-peer networks, fair use, and copyrights before allowing downloads.[2] Others made policy changes restricting access to the university’s network unless certain conditions were met. For one extreme example, there were no conditions. As of April 25, 2007, Ohio University began blocking users from their network if they were peer-to-peer file sharing, as evidenced by the disproportionate amount of bandwith they would be using relative to other users. Although in their own electronic newsletter the University claims the crackdown is a result of the unfair usage of bandwith, the policy change occurred after a recent release of over 1,200 more pre-litigation letters, 120 of which went to Ohio University.[3] Partly over concerns about liability if litigation were to occur, or maybe because an estimated 120 hours of staff time that was spent dealing with these letters,[4] Ohio University is not alone in taking proactive measures to safeguard the institution from finding itself in court by removing themselves from the equation.

Over the next several years, the RIAA filed hundreds and thousands of lawsuits. By September of 2008, an estimated 30,000 lawsuits had been filed against individual file sharers, most settling out of court for $1-3,000.[5] One noteworthy case was Jammie Thomas. She was sued for $220,000 for sharing 24 music files on Kazaa, that’s $9,425 per file. This was the first time the RIAA had a jury trial; however, the jurors did not have a chance to decide. The judge decalred a mistrial because he reconsidered the jury instruction he had selected. The bigger issue was what the burden of prrof is for the RIAA: that Ms. Thomas made the file available at all (the RIAA’s argument) or that it was downloaded by others. The second burden, the RIAA contended, would be impossible to prove since the file transfers took advantage of a peer to peer network.[6] This issue still has not been addressed and may need to go before the US Supreme Court for a decision.

All of these efforts by the RIAA are an example of how copyright holders are fighting back against grassroots efforts to ensure access to information, like the creation and maintenance of a peer-to-peer file sharing network. Other copyright holders may need to go to similar lengths, challenging an individual’s use of copyrighted material in court. The interpretation of our court system of the DMCA and copyright law in general, which is ambiguous at best, will seriously impact access to certain kinds of materials. More importantly to libraries, it will impact the provision of access to if courts were to decide that the provider of the Internet connection were in some way liable for peer-to-peer file sharing. In my next post, I will talk about the RIAA’s most recent history and current status of efforts to bring civil suits for infringement.


[1] Electronic Frontier Foundation. 2003. RIAA v. Verizon case archive. EFF. http://www.eff.org/cases/riaa-v-verizon-case-archive (Accessed on July 12, 2009).

[2] Guess, Andy. May 15, 2008. Want to download? Take the quiz. Inside Higher Ed. http://www.insidehighered.com/news/2008/05/15/p2p (Accessed on July 12, 2009).

[3] Office of the Dean of Students. April 25, 2007. Ohio University announces changes in file-sharing policies. Ohio Students. http://www.ohio.edu/students/filesharing.cfm (Accessed on July 12, 2009).

[4] Ibid.

[5] Electronic Frontier Foundation. RIAA v. The People: Five Years Later. EFF. http://www.eff.org/wp/riaa-v-people-years-later (Accessed on July 12, 2009). [6] Kravets, Jason. Sept. 24, 2008. Judge Declares Mistrial in RIAA-Jammie Thomas Trial. Wired. http://www.wired.com/threatlevel/2008/09/not-for-publica/ (Accessed on July 12, 2009).