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RIAA Will Issue Second Subpoena For Identity of Music Distributor

By Keith J. Winstein

NEWS EDITOR

The Recording Industry Association of America will send MIT a second subpoena seeking the identity of a network user alleged to have been illegally “offering hundreds of copyrighted works to the world-at-large” from MIT’s network through the KaZaA file-sharing system, an RIAA spokesman said last night.

This time, the RIAA will file the subpoena the way MIT has asked: through the federal district court in Boston, instead of Washington, D.C. MIT says it will comply with a subpoena issued through the Boston court.

“We have begun to file subpoenas in the local jurisdiction of Massachusetts,” the RIAA spokesman said. “What this means is that students at MIT and other local colleges who are illegally distributing substantial amounts of copyrighted music will now be held accountable for their actions.”

Federal copyright law generally makes it illegal to reproduce or digitally transmit copyrighted music recordings without the permission of the copyright owner, usually a record label represented by the RIAA.

In a section used more than a thousand times by the RIAA in recent months, the 1998 Digital Millennium Copyright Act empowers copyright owners to demand the identity of users they allege to be committing copyright infringement from Internet service providers.

MIT wants to talk with owner

MIT says it has identified and notified the owner of the computer alleged to have been illegally offering the recordings, based on logs provided by the Theta Delta Chi fraternity, where the computer was located.

MIT originally suspected a “young lady” living at TDC over the summer as being the computer’s owner, said an MIT official. But now, based on examination of the logs provided by TDC, MIT has decided a different individual is the computer’s owner.

MIT officials say they are not sure the owner is actually the person who was allegedly infringing the RIAA members’ copyrights by distributing recordings on KaZaA.

“Once you have identified a person and tied the person to the machine, there is the question, ‘Was that individual in control of the machine at the time that the incident occurred?’” the official said.

“Our hope is that the person is going to make an appearance at [Information Systems] or the senior counsel’s office so that we can have a conversation,” the official said. MIT has not yet heard from the person identified as the owner.

If the computer’s owner can convince MIT officials that he or she is not responsible for the infringement, it is not clear if MIT will release the owner’s name to the RIAA. The DMCA requires MIT to release “information sufficient to identify the alleged infringer of the material described ... to the extent such information is available to the service provider.”

MIT wins a jurisdictional dispute

On Aug. 7, MIT won a dispute with the RIAA over whether MIT should have to comply with a previous subpoena the recording industry association issued through the federal district court in Washington, D.C., home to the RIAA.

U.S. District Judge Joseph L. Tauro of Boston’s federal district court agreed with MIT and Boston College, who had argued that the Federal Rules of Civil Procedure required subpoenas the RIAA issued to them to be signed by the clerk of MIT and BC’s home court, in Boston.

But another proceeding, filed by the RIAA against MIT in the Washington court to require compliance with the first subpoena, remains ongoing, and that court could order MIT to comply even though the Boston court has ruled in MIT’s favor.

“It’s conceivable one court can go ahead and another can go ahead and they can reach inconsistent results,” said Professor Arthur Miller of Harvard Law School, an expert on copyright and civil procedure. “Somehow or other these conflicts, which are inevitable, get worked out. Many courts simply stay themselves when another court has acted,” he said.

A conflict is unlikely, as the RIAA has said it will refile in Boston and MIT has said it will comply with such a subpoena.