RIAA turns up heat on subpoena fighter
By John Borland
CNET News.com
August 27, 2003, 2:42 PM PT

The Recording Industry Association of America leveled a full legal barrage at the sole Kazaa user fighting its attempts to identify file swappers, saying she was indisputably a major copyright infringer.

In papers filed Tuesday with a federal court in Washington, the Recording Industry Association of America (RIAA) said it did not oppose the anonymous Kazaa user's request to fight the subpoena seeking her identity but that any such motion should be filed immediately. Previously, Jane Doe's attorneys had asked for more time to prepare their case arguing that the RIAA subpoena, filed with Internet service provider Verizon Communications, violated her privacy and other constitutional rights.

It is now clear that her objections have been either previously rejected by this court or are totally irrelevant to a subpoena enforcement proceeding, the RIAA wrote in its brief. She will be able to raise whatever arguments she wants in the copyright infringement action that is sure to follow.

The ongoing legal skirmishes will help stabilize the process by which the RIAA seeks the identity of file swappers, and ultimately, files lawsuits against them. But the latest round of briefs also gave new insight into exactly what kind of evidence the group will level against accused file swappers in court.

Technically, neither the RIAA nor Nycfashiongirl, the Kazaa user's online nickname, are supposed to be fighting over the details of what she may have downloaded or when and where she got the files. The only open proceeding is the subpoena for her identity, which will be approved or blocked on different grounds.

But the filings appear to be aimed as much at the court of opinion as at the real court bench, and both sides seem to be fighting a case that hasn't yet been filed. Last week, Nycfashiongirl's attorney told the court that his client had purchased a computer with music on it, had legally ripped her own CDs to her hard drive, and had used the Kazaa application to listen to that music. She had tried several times to prevent sharing that music with the outside world, her attorneys wrote.

Even while conceding that the information had little to do with the subpoena process itself, the RIAA spent considerable time in its legal filings trying to establish that the anonymous computer user was not an innocent victim. Nycfashiongirl, in fact, shared more than 900 songs online, many of them downloaded from Kazaa or even Napster, the briefs said.

In a preview of what will likely show up in many of the infringement lawsuits next month, the RIAA demonstrated that it not only had found the small number of songs listed in the subpoena request, but had examined the full contents of Nycfashiongirl's shared folder, looking in detail at the metadata attached to each file such as song name, artist, notes attached by earlier file swappers, and even at the contents of the file itself.

Some of the files exactly matched the fingerprints, or specific digital characteristics, of songs earlier identified on the now-defunct Napster service, the RIAA said. All those factors indicated that the anonymous computer user was a frequent and significant participant in illegal downloading and distribution of music, the group wrote.

Nycfashiongirl attorney Glenn Peterson dismissed those claims as irrelevant to his client's current motion. The Kazaa user is contending that her rights are being violated by the subpoena for her identity through Verizon and is not yet fighting a lawsuit accusing her of infringement, he said.

The issue of downloading is not part of the proceeding, Peterson said. Whatever evidence they are trying to use to show downloading seems irrelevant.

Peterson said he and his partner on the case would likely have a legal response ready as soon as Thursday.

ZD Net