Yesterday, a U.S. judge ordered an ISP to turn over the name of someone who downloaded six hundred MP3s from the Internet in a single day to the RIAA.
This case will be appealed by the ISP, but as it stands now, this is a big win for the RIAA.
Why This Is Important
In a sentence, this decision is important because this opens the way for the RIAA and Company to very easily and cheaply find out who you are from your ISP so they can sue you and provide a basis for criminal action.
What was being contested in this court case was a provision of the DMCA which allowed folks like the RIAA to get this information much easier and cheaper than by following the usual procedure.
The RIAA asked the ISP for the name of the miscreant under this provision of the law, and the ISP went to court to test this provision. The court said, “Yes, ISP, you have to hand over the name.”
If this decision holds, what will happen is that so long as the RIAA and Company sends your ISP a notice that meets the requirements of the provision, the ISP will turn your name over.
You see, if they don’t do that, then they also become responsible for any copyright infringement and can get sued for it. These people aren’t Jesus; they aren’t going to get crucified to save you.
I’m Safe, My ISP Says It Will Never Turn Over My Name
I see you got fooled by that, too.
If you look at the fine print buried some place in the website, you’re very likely to find a loophole in that statement. At least I’ve found it in every place making such claims.
What the loophole basically says it that they won’t turn over the information unless they are legally ordered to do so.
While any subpoena can be challenged, as a rule, so long as it meets the requirements of the law, there’s no point in doing so because then it just goes to a judge who’ll immediately uphold it.
So if you use an ISP based in the U.S. (and to make a long story short, any ISP with significant U.S. business), don’t count on any ISP keeping you anonymous.
Cheap and Easy Subpoenas
It’s not that the RIAA and Company couldn’t go after you before this ruling. It’s just that it would be too expensive for them to go after tons and tons of you if they had to start a court case just to get a subpoena from an ISP for each and every person.
With this decision, once RIAA and Company get this person’s name, they’ll probably make an example of him/her.
Provided they succeed in that, RIAA and Company will just gather proof of people downloading, “sharing.” whatever (yes, they can do that quite legally). Then they’ll get your names from your ISPs. After that, they’ll likely send you and/or your parents (if you’re a minor and/or you use their computer, they are legally responsible for what you do on that computer) a nice little note essentially saying:
Dear Sirs,
Here’s a list of the three zillion MP3s little Johnny downloaded.
Do we settle this out-of-court for a few hundred or grand, or do we sue you for megabucks?
P.S. If you come to court, be sure to bring all the CDs and all the sales receipts/credit card statements from the purchases with you.
It’s very doubtful RIAA and Company will try to put most or even many people in jail. They want money for them, not jail time for you.
What You Don’t Know Can Hurt You
To put it mildly, the average person who is heavily into doing this sort of thing is clueless about law. This is understandable; this isn’t a hotbed for lawyers.
But if things go the way I expect them to, RIAA and Company will go the civil rather than the criminal law route. Civil law is much different than criminal law. Civil law decisions aren’t like Law and Order; they really are like People’s Court or Judge Judy. The preponderence of evidence required to find you guilty is much less, and the other side doesn’t have to prove everything.
If you watch People’s Court, the cases are usually lawsuits over money. Often, one side will say “I paid this” or “He/she didn’t pay that.” What does the judge then do? The judge asks for proof as to whether something was paid or not, and it doesn’t matter whether it’s the plaintiff or the defendant. If you’re the defendant and you say you paid something, you have to prove that.
That is what will happen in these kinds of cases. RIAA and Company will say, “Here’s proof the defendant downloaded eight zillion songs.” You tell the judge, “It’s OK, I own this music.” Guess what the judge is going to say? “Show me proof,” and you’re going to have to do it. They aren’t going to accept your word on it.
And no, they’re not going to believe “I always throw out my CDs after ripping them, that’s why I don’t have any” like one person once told me would be his “defense.”
And “sharing?” Forget about coming up with any sort of defense for that.
What will probably happen in most cases is that after talking to a lawyer, most people will realize RIAA has them by the cojones, and settle out-of-court.
Is It Worth It?
This decision makes it far more likely that sometime in the future, you and/or your father or mother will get the kind of letter I described above.
Then you and/or your parents will have to make a decision. They’ll either have to settle with RIAA for a lot of money, or go to court, at the very least pay a lawyer, and probably lose and get a much much bigger bill as a result.
And don’t think “I’m OK, I have no money.” If a civil judgment gets rendered against you, if you can’t pay all of it right away, they’ll just take it out of your future paychecks or other monies you might get.
Did you know that?
You can call this unfair, unjust, whatever until you’re blue in the face. You can say “They can’t do that,” and all your friends can agree with you. None of that will matter. Neither the RIAA nor the law cares about peer pressure.
If you get nothing else from this piece, please get it into your head that they CAN do this to you quite legally, and this court decision (if it sticks) makes it much more likely sooner or later that they will get you or someone you know.
Don’t delude yourself into thinking that they can’t get you; that there’s some legal trick that protects you from having to prove you actually bought these things. You don’t, and especially not in a civil case like this one.
You get asked “where’s the beef” and if all you come up with is some slick-to-you reason why you don’t have to do that, all you’ll get is some real-life Judge Judy calling you an idiot before ruling against you, just like you see on the TV show.
You’re going to find that any defense short of actually having bought the stuff gives you about as much protection as using a piece of bubble gum as a condom.
I’m not telling you this because I love RIAA and Company. I don’t tell you this because my heart bleeds for their lost profits.
I say it because I see what kind of big trouble some of you could get yourself into; I see that many don’t understand what they could get themselves and, in many cases, their parents, into, and my heart bleeds for that.
I know full well most of those reading this won’t listen, and will only learn when and if they get that letter, when it will be too late. I just hope a piece like this will reduce the number of those who have to learn the hard way.
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