May 13, 2003 4:41 PM PDT
RIAA apologizes for erroneous letters
The RIAA said Tuesday that a temporary worker was responsible for firing off legal notifications last week that invoked the Digital Millennium Copyright Act without confirming that any copyrighted files were actually being offered for download. "We have sent two dozen withdrawal notices--all appear related to this particular temp," the RIAA said in a statement. "We apologize for any inconvenience this may have caused."
On Monday, as first reported by CNET News.com, the RIAA withdrew a DMCA notice to Penn State University's astronomy and astrophysics department. Sent during Penn State's final exams, it prompted the central computing office at the campus to threaten the department with having its Internet connection severed unless the infringing material was removed.
The problem, however, was that no infringing file existed on the department's computer. The RIAA's automated program apparently confused two separate pieces of information--a legal MP3 and a directory named "usher"--and concluded there was an illegal copy of a song by the musician Usher.
In a second incident, Speakeasy, a national broadband provider, said Tuesday that the RIAA had apologized for sending it a cease-and-desist letter alleging illegal activity on a subscriber's FTP site devoted to the Commodore Amiga computer. The RIAA's form letter sent to Speakeasy last Thursday alleged the Amigascne.org site illegally "offers approximately 0 sound files for download. Many of these files contain recordings owned by our member companies, including songs by such artists as Creed."
The errors represent a black eye for the RIAA's latest efforts against piracy, which rely on automated crawlers to scour the Internet in an attempt to find material that is being distributed in a way that violates federal copyright law. The RIAA refuses to disclose what techniques its crawlers use, but the group appears to employ companies such as MediaForce and MediaDefender. Its copyright enforcers are not required to listen to an allegedly infringing MP3 file in its entirety, the RIAA has acknowledged.
RIAA spokesman Jonathan Lamy would not say who the temporary employee worked for, whether the person had been fired or who else had received DMCA notices.
"We do not discuss employment details, other than to say, 'We are taking appropriate action against this individual,'" Lamy said. "As we said, 24 withdrawal notices have been sent, all apparently due to mistakes this temp employee made." Just as the RIAA doesn't publicize the names of whom it sends cease-and-desist notices in order to protect their privacy, Lamy said, the group will not publicize this temp's name.
While the RIAA said that only 24 faulty letters have been sent, a comparison of the tracking numbers inserted in the Penn State and Speakeasy notices shows they differ by 136 numbers. That difference implies that hundreds of additional notifications may have been fired off around the same time, though not necessarily by the same RIAA worker.
Speakeasy said Tuesday that it accepted the RIAA's apology.
"Speakeasy routinely monitors abuse allegations from outside parties and forwards notices to its subscribers when appropriate. In this particular case, our abuse department notified the subscriber of the RIAA inquiry and Speakeasy simultaneously contacted the RIAA to question the '0 files found' portion of the original letter," a spokeswoman said. "Speakeasy is satisfied with the RIAA's timely response."
Kurt Hoffman, Speakeasy's chief operating officer, said the company believed RIAA's notice to be an honest mistake and that Speakeasy will not pursue legal action.
Under section 512 of the controversial DMCA, a representative of a copyright holder can send a "takedown" notice to a university or other Internet provider requesting that copyrighted material be removed. Anyone receiving a false notice can sue for damages and attorney's fees, but only if the sender "knowingly materially misrepresents" information.
Cindy Cohn, legal director for the Electronic Frontier Foundation, said Monday that section 512 hands too much power to copyright holders. "If you have a good-faith belief that use of the material is not authorized by the copyright holder under copyright law, that's the only standard you have to meet," Cohn said. "You can't be liable if you're wrong unless you knowingly and materially misrepresented. I think the situations where there will be liability will be very small."
Section 512 of the DMCA is also what's at issue in the RIAA v. Verizon lawsuit, which is before a federal appeals court in Washington. The law permits a copyright owner to send a subpoena ordering a service provider to turn over information about a subscriber. The service provider must promptly comply with that order, and no judge's approval is required first, a process that Verizon says is not sufficiently privacy-protective.
While this appears to be the first time that mistakes by the RIAA have been made public, other copyright holders overreached. A site that offers the open-source OpenOffice program received such a notice from Microsoft's representatives after an automated program searching for MS Office became confused. The Church of Scientology invoked section 512 in an attempt to get Google to delete links to both the church's copyrighted work and a critic's Web site.
Erroneous takedown notices sent under section 512 can be disruptive. At Penn State, where a song by the astronomer a capella group The Chromatics about a gamma-ray satellite apparently triggered the RIAA's notification-bot, the astronomy department's system administrator spent four days dealing with the fallout. "I knew the DMCA was not the greatest law ever made, but when this came down the pike, I was caught completely off guard," said Matt Soccio, the department's network and information systems manager.
Sam Kielek, who is an administrator for the Amiga site he runs from his home with a DSL connection, said he believes Speakeasy took a clearly erroneous complaint from the RIAA too seriously. A note to Kielek from Patrick McDonald in Speakeasy's abuse department defended the RIAA, saying the group's investigators must have found something: "If the current complaint does not have any scan results, this would mean that at one point it did--otherwise, they would not have sent out an e-mail in the first place--and they are making a formal notification about it."
Kielek said: "I'm unhappy with the way Speakeasy handled this entire ordeal...I wanted Speakeasy to make more of an effort to look at an obvious error in this e-mail. The way the e-mail could have been written is to say, 'We received the e-mail from RIAA saying that there were zero files. So there was an error.'"
The Amigascne.org site is devoted to collections of "demo" files, which show off the capabilities of the Amiga computer, which had superior graphics when it was introduced in the 1980s. "There are some files with the suffix mp3 but there is nothing I could find that I could associate with any artist that I know of," Kielek said.