September 9, 2003 9:59 AM PDT

Will file traders face the music?

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Charles Dumond of San Mateo, Calif., learned that he was targeted in a landmark series of recording industry piracy lawsuits only when reporters started calling his home on Monday.

One of 261 people named by the Recording Industry Association of America in an unprecedented wave of lawsuits aimed at alleged "egregious" file traders, an angry Dumont said the accusations had taken him wholly by surprise.

"Personally, I have not done this," Dumond said in a brief phone conversation Monday night. "There may be other family members who do this. But the (Internet service provider) bill is in my name."

Dumond's experience was likely repeated hundreds of times in the last 24 hours, as lawsuit targets heard about the actions filed against them from reporters long before they saw legal documents or talked to an attorney.

Many of the lawsuit targets will likely end up settling with the RIAA in the largest copyright enforcement operation ever mounted against ordinary Internet users. But as details emerge, casting some of the defendants as parents of Kazaa-loving children or otherwise unwitting owners of file-swapping computers, some RIAA suits may turn out to be more complicated than they appear.

The suits themselves are simple. Filed in near-identical form in courthouses around the country, they are bare-bones copyright infringement claims, each listing a short number of works that each defendant allegedly offered to the public through file-swapping services such as Kazaa. Investigators downloaded and verified the authenticity of each of these allegedly infringing files, RIAA President Cary Sherman said in a conference call, as he announced the lawsuits.

Each suit contains a name and an address that has been provided by the alleged file swapper's ISP as part of an unusual subpoena process the Digital Millennium Copyright Act authorized. The RIAA has issued more than 1,500 subpoenas for alleged file swappers' personal information but has not said why it sued just 261 people of the larger pool of potential defendants.

But those addresses lead only to a single name on an ISP account. Many of those are likely to be sole account holders. Some, such as Dumond, will have an account several family members use. Others may use company computers or even be linked to wireless access points that serve the public without maintaining records of who is logged in at any particular time.

Mark Lemley, a law professor at the University of California at Berkeley, predicts that the RIAA will encounter problems if it sued someone who shared his or her Internet connection through a Wi-Fi wireless network. "Opening a computer to a Wi-Fi network...is definitely not an act of direct infringement, so the RIAA would need to find the people who actually did the uploading," he said.

In general, the RIAA's lawsuits against alleged file swappers are believed to stand a reasonable chance of succeeding. Every court that's considered the topic has concluded that illegal copyright infringing is omnipresent on peer-to-peer networks. But legal experts still caution that there are plenty of ways the RIAA's phalanx of attorneys could slip up.

First, the alleged copyright infringer could have a valid "fair use" defense for file sharing. The defendant might have "wanted to analyze a certain song for a music theory class but (was) unable to find a copy anywhere else," said Megan Gray, an attorney in Washington, D.C., who specializes in intellectual property cases.

Furthermore, Gray said, the file trader might be liable for damages but so impoverished that there's no way the RIAA member companies can collect. Finally, a minor child could have been the person trading files, and whether a parent is liable for a child's actions varies state by state, she said.

Dumond, the San Mateo resident, declined to give more information about his family or his own personal situation, criticizing the process that has made him a public figure without warning. "I am not a Kazaa user. I don't share music files on the Internet," he said. "Also, I received no letters prior to this, nothing from the RIAA, nothing from my ISP, nothing from anyone, which I think is inappropriate."

Another way an alleged file trader might succeed in defending a lawsuit is by relying on the 1992 Audio Home Recording Act (AHRA), which could provide some form of legal immunization for peer-to-peer users. Napster unsuccessfully invoked the AHRA when the music industry sued it into oblivion, but courts might be more sympathetic to individual users, some legal experts believe.

The law says no lawsuit may be brought that alleges copyright infringement based on the "noncommercial use by a consumer of such a (digital audio recording device) or medium for making digital musical recordings." The latest generation of multimedia PCs that are equipped with CD and DVD burners may qualify as a digital audio recording device, the thinking goes, which would mean the AHRA applies.

Jessica Litman, a law professor at Wayne State University who testified before Congress when the AHRA was being debated, said it's "an argument I'd expect to see made, and it's possible that it will succeed.

"It's absolutely clear from the legislative history that Congress' attempt at the time was to protect all noncommercial forms of music copying, period. Consumers were exempt from making noncommercial copies of digital or analog music recordings...The argument hasn't been made since (Napster), but there hasn't been a consumer in front of the court. With a consumer in front of the court, the argument becomes significantly more compelling."

Like Dumond, Lynette Neuman, a Concord, Calif., resident also named by the RIAA lawsuits said she was given no warning before reporters contacted her. She also declined to divulge any information about her own situation.

Many RIAA lawsuit targets are still waiting to see what they are accused of before deciding whether to fight or settle.

"What I don't know is exactly what I'm supposed to have done," Dumond said.

 

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