File-swapper hits back at RIAA

An anonymous file-swapper in the US has gone to court to challenge the recording industry's subpoenas, claiming they are unconstitutional and violate her right to privacy.

The legal motion, filed in the Washington DC federal court by a "Jane Doe" internet service subscriber, is the first from an individual whose personal information has been subpoenaed by the Recording Industry Association of America (RIAA) in recent months.

The RIAA has used court orders to try to identify more than 1,000 computer users it alleges have been offering copyrighted songs on file-swapping networks. It plans to use the information gained to file copyright lawsuits against the individuals.

The motion was filed by a pair of US attorneys who said the RIAA has gone too far in its effort to protect its online copyrights.

Glenn Peterson, one of the attorneys, said in a statement: "This is more invasive than someone having secret access to the library books you check out or the videos you rent. The recent efforts of the music industry to root out piracy have addressed a uniquely contemporary problem with draconian methods - good old-fashioned intimidation combined with access to personal information that would make George Orwell blush."

The Jane Doe motion comes as the first individual legal response to the RIAA's effort to sue large numbers of file-swappers. It follows similar legal challenges from several internet service providers (ISPs) and colleges, including Pacific Bell Internet Services, an SBC Communications subsidiary.

A Massachusetts federal court has already ruled that some of the group's subpoenas, submitted to the Massachusetts Institute of Technology and Boston College, had not followed the correct legal process and were therefore invalid. That court left open the possibility that the RIAA could simply refile those subpoenas properly, however.

According to documents filed with the court, Jane Doe used the Kazaa file-swapping software as a music player largely to listen to songs she had ripped from her own CDs and to music that came pre-loaded on her family computer. She also "participated" in the Kazaa file-swapping community but tried to prevent other people from accessing files on her computer, the documents state.

On 9 July, the RIAA sent her ISP, Verizon Communications, a subpoena seeking her name, address, phone number and email address. Verizon contacted the anonymous subscriber on 15 July 15, telling her that the group was targeting her. After consulting with attorneys, she asked Verizon to delay providing her information, because she would fight the request.

The action filed Thursday is still a preliminary step before settling down to fight on constitutional or other grounds. Because the RIAA document was seeking information from Verizon, not directly from her, she must first petition the court for the right to challenge the subpoena herself. In their briefs, her attorneys argued that the RIAA's unconventional subpoena process has violated her rights to due process, privacy and anonymous association, along with her contract with Verizon.

For its part, the RIAA said that Jane Doe's motion to intervene matters little, because a federal court has already upheld the validity of the subpoena process.

Matt Oppenheim, senior vice president at the RIAA: "The courts have already ruled that you're not anonymous when you're publicly distributing music online. Her lawyers are trying to obtain a free pass to download or upload music online illegally. Their arguments have already been addressed by federal court and been rejected."

The Electronic Frontier Foundation, a digital civil liberties group, is also working with some individuals who say their screen names have been the subject of RIAA subpoenas, but it has not yet filed any challenges with the court. However, the group said in other kinds of cases such as libel and defamation, the law allows individuals to intervene in ISP subpoenas when their privacy is at stake.

Fred von Lohmann, an EFF attorney, said: "The most important issue is that if you are innocent, if the RIAA has screwed up, it is critical that individuals have the ability to challenge the subpoenas before their identities are compromised."

John Borland writes for CNET News.com