MIT and Boston College made the right choice by going to court to challenge subpoenas recently delivered by the Recording Industry Association of America (RIAA) seeking the names of individuals on campus allegedly sharing copyrighted music. But even though they succeeded in getting the subpoenas blocked, the victory was a temporary one--MIT and Boston College argued that the RIAA got the subpoenas from the wrong court in faraway Washington, D.C., and failed to allow enough time for the schools to give notice to their students.
In response, the RIAA lawyers refiled their paperwork in Boston federal court.
As any lawyer will tell you, once you have received a valid federal subpoena, your options are limited. The subpoenas obtained by the RIAA are issued by a federal court automatically, without any lawsuit being filed or even review by a judge. This, thanks to an obscure provision included in the Digital Millennium Copyright Act of 1998, which allows copyright owners to obtain federal subpoenas by merely making allegations of infringement. Several Internet service providers are in court challenging the constitutionality of this special subpoena power, and Sen. Sam Brownback, R-Kan., has expressed interest in repealing it. But until the special subpoena power is overturned or repealed, it is the law of the land.
So, for the time being, in the RIAA's war on file sharing, everyone is guilty until proven innocent. Universities and colleges, like other ISPs, have to hand over the names and addresses of the faculty, staff or students whom the RIAA has accused.
But only if they have the information. The RIAA subpoenas rely on the Internet Protocol numbers assigned to campus computers to trace people to particular campuses. Campus computer networks, however, do not have to keep track of who has what IP number at any given time. By properly configuring their campus networks, colleges and universities can shuffle IP numbers among different individuals on a regular basis, a common practice among ISPs. That way, when the subpoena arrives, the administrators can honestly say that they have no identifying information to provide.
In the RIAA's war on file sharing, everyone is guilty until proven innocent. By configuring their networks to protect privacy, universities are not condoning piracy. To take an analogous case, no one disputes that colleges and universities should be educating their students about the responsible and legal use of alcohol. That, however, is a far cry from faulting a university for refusing to compile a list of every student who walks into a fraternity party on Saturday night and to turn over the list to the police to assist them in building dossiers of suspected underage drinkers.
With one in five Americans swapping music online, it should be clear that more lawsuits are not the answer. In the end, copyright law should be updated to include a mechanism that gets artists paid, while making file sharing legal. Until then, however, colleges and universities should make every effort to get themselves out of the cross-fire by configuring their campus networks so that they protect the privacy of students, staff, and faculty.
biography
Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, a membership-supported nonprofit devoted to protecting civil liberties and free expression online.
