Oregon Attorney General criticizes RIAA's conduct in P2P cases

One of the hotly contested campus file-sharing cases involves 17 University of Oregon students, which has seen the Attorney General of Oregon stepping in on the university's behalf to contest the RIAA's "unduly burdensome" subpoenas. As expected, the RIAA opposed the AG's attempt to quash the subpoenas, and the state has now submitted a reply in support of its motion to quash in which it calls into question the RIAA's litigation tactics and seeks to conduct discovery of its own into the RIAA's investigative tactics.

The AG's motion makes a number of points about the RIAA's tactics and suggests that some of them may be illegal under Oregon law. SafeNet, which hunts for copyright infringers on P2P networks is not licensed to conduct investigations in the state of Oregon, as the AG believes is necessary under state law.

Oregon's AG is also suspicious about what kind of information SafeNet and the RIAA may have already gathered on the Does in question. According to the motion, the RIAA refused to answer interrogatories on whether its investigators had engaged in data mining to obtain "personal and confidential information" on the users, including user names, passwords, search histories, credit card numbers, and e-mail addresses. The AG wants to be able to engage in discovery to determine "precisely how invasive Plaintiffs' investigation was."

The AG also calls the RIAA's evidence into question, noting that the RIAA's motion seeking ex parte discovery contains "broad representations to create the impression they had sufficient information to warrant extraordinary relief." Those representations include a declaration by the RIAA's usual expert witness, Carlos Linares, who the AG points out played no role in the current case and has no firsthand information about any copyright infringement that may have occurred. "Plaintiffs have shown only a potential for illegal file sharing; they have not shown that any infringing activity took place," argues the AG.

In its reply to the motion to quash, the RIAA pointed out that the AG's office had also represented Portland State University in a 2004 file-sharing case, and that the school readily gave the labels the requested information. The labels argued that Portland State's compliance three years ago calls into question the University of Oregon's assertion that the subpoenas put an undue burden on the school. In response, the AG points out that schools are separate entities that do not coordinate their actions.

The University of Oregon wants to be able to conduct some discovery of its own before any information is released. "Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits, as they themselves have pointed out, their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny," argues the AG's motion. "Plaintiffs may be spying on students who use the University's computer system and may be accessing much more than IP addresses." The University wants to take depositions from the investigators and ask the RIAA a few questions of its own.

The University's proposed interrogatories are likely to go over like a lead balloon with the RIAA. Number two asks the labels to "Describe with particularity the economic damage, if any, that the RIAA suffered as a result of the unlawful conduct of each Doe Defendant." Those figures should include the date the damaged occurred, the amount, the entity suffering the damage, and how the damage was caused. The question of actual damages has been raised in other cases, and, earlier this week, a federal judge in New York ordered the RIAA to divulge its actual per-download expenses.

Yesterday, reports surfaced that EMI was considering cutting its funding to the RIAA and IFPI, and we believe the costs—financial and otherwise—of the ongoing legal campaign against P2P users may be a factor. Prosecuting the case against these 17 Does is going to get very expensive for the RIAA, especially if the judge approves the University's motion to conduct discovery of its own.

Wendy Seltzer, former EFF attorney and founder of the Chilling Effects Clearinghouse, gave a talk at Cornell University in September in which she exhorted universities to stand up to "copyright bullies." The University of Oregon is doing exactly that, and if other colleges take a similar stance, it's going to make the RIAA's legal campaign against college students even more troublesome than it has already proven.

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