[CSG Winter 08] Campus Counsel Panel on copyright and file sharing

Steve McDonald, general counsel from the Rhode Island School of Design, is talking about general copyright law and some of the issues. around it. Steve’s presentation slides are here.

Beth Cate, Associate General Counsel from Indiana University, is talking about the Early Settlement Offer process. She has polled some schools and done a bunch of talking with colleagues. The attorneys have told her that they wait till they have a batch of incidents to send them to a given school. In some cases they’ve seen pre-settlement letters a month or so after they’ve gotten takedown notices. She’s been told that these are two totally separate programs that are completely uncoordinated by the industry. They have seen some of these that are not students but employees. In response to a question of what happens if a user just ignores all communication, she says that it will eventually go to a default judgement, and Steve notes that there are dozens and dozens of these out there now.

She asked three recording industry attorneys whether schools have a legal duty to preserve data pending subpoena and got one yes, one no, one maybe. Under FRCP there’s no obligation to preserve before a subpoena. Some states have a cause of action for intentional or negligent third partiy spoliation of evidence. Not clear whether state or federal rules would apply. Most common response to RIAA seems to be “our policy is to retain logs for this period of time – if you get us a subpoena in that time frame then we’ll have the data.”

Lee Smith (U Texas) – many of these activities regarding privacy have to do with the legal background on search and seizure. This goes back to colonial law on “writs of assistance” which enabled warrants in enforcing commercial law. That’s the background of the principles in the Fourth Ammendment requiring probable cause.

Oregon- awaiting federal district judge to respond to their motion to quash. They’ve made a motion on oral argument – not anticipating any more briefing. They looked at RIAA’s strategy and the what the university’s role ought to be with regards to it. The industry strategy is to hire Media Sentry, who trolls the Internet for evidence of music file transfers. What they do is not entirely clear – in Oregon a 40 year old disabled woman, Tanya Anderson, and her seven year old daughter were sued by RIAA. The case was dismissed, but then the woman sued the RIAA. That case is pending in Oregon.

The early settlement letter directs people to a web site owned by the RIAA, where you can settle the case with a credit card – from the university’s perspective this looks like a shakedown. They simply decline to be enlisted by the RIAA in this endeavor, but they are preserving the data relevant to the complaints, and told the RIAA that. Then the RIAA filed a John Doe suit. The RIAA’s afadavit contended that the data was in danger of being destroyed and that’s why they needed an ex partae subpoena – Oregon finds that problematic. Oregon wonders whether they ask for ex partae judgements to avoid having to deal with parties with some resources to get the data – namely the University or the State. heav


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