Oklahoma University Told to Prove P2P Contempt Charge Unwarranted
Another fight between the RIAA and a university over unnamed P2P defendants came to a head Tuesday, but may be resolved shortly. The U.S. District Court in Oklahoma City ordered Oklahoma State University to show cause why it shouldn’t be held in contempt of court for failing to respond to RIAA subpoenas to identify student defendants in Arista v. Does 1-11. But the case doesn’t appear to herald the involvement of a second state attorney general in a P2P case. The attorney general of Oregon intervened on behalf of the University of Oregon against RIAA subpoenas to identify alleged infringers, citing student privacy law (WID Dec 3 p5).
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The RIAA said in a Monday filing that OSU had agreed to respond to its subpoenas on Nov. 27, but the response wasn’t forthcoming after RIAA reminders Dec. 10, Jan. 11 and “several” times this month. The school’s Feb. 1 e-mail response “purporting to attach the subpoena response… did not include the referenced attachment,” the group said, asking for a “short status conference” to resolve the university’s perceived intransigence.
The RIAA also asked the court to “resolve the issue” of unidentified defendants represented by attorney Marilyn Barringer-Thomson. The group’s lawyer is prohibited from “directly” contacting any party represented by an attorney -- but the RIAA intends to contact students if the school responds to subpoenas, and it needs to know those it can’t contact. Barringer-Thomson refused to identify her clients, citing Oklahoma law and regulations. She was the first attorney to get fees from the RIAA for another client’s victory (WID July 18 p5) and is waiting for a ruling on a fee request for another, she told us.
The court told OSU Tuesday to explain by March 1 why it shouldn’t be held in contempt of court. The school hasn’t appeared in court to object to the subpoenas, and Judge David Russell previously denied a motion by some defendants to quash the subpoenas, he said. Russell said in that decision the school could share “directory information” on students with the RIAA. Sharing like that has been a bone of contention for the Oregon attorney general and P2P defendants around the country who argue that an IP address connected to a name becomes shielded personal information. But Russell was silent on the RIAA’s request to find a way to identify which defendants it can and can’t contact.
OSU has sent a subpoena response to the RIAA, Associate General Counsel Scott Fern told us. The school gave notice and a copy of the subpoena to each student it had identified as the legal target of the RIAA last summer, but didn’t identify them to the group. OSU told the students it would comply with the subpoenas unless they got an order quashing the subpoenas, he said. “OSU tried to transmit that information electronically some days ago, and there was an apparent glitch in the process” that the school didn’t learn of before the court’s contempt order, Fern said. OSU hasn’t reached out to, or been contacted by, the Oklahoma attorney general concerning Arista, he said. P2P lawyer and blogger Ray Beckerman had speculated that OSU’s failure to reply promptly to the subpoenas could be because the school was consulting with the attorney general on its legal options, as happened in Oregon.
Barringer-Thomson has been in the dark on the school’s contact with the RIAA, she told us, obviously frustrated. She only realized that students had been identified when the RIAA started filing paperwork showing that it was settling with some of the alleged infringers. OSU hasn’t responded to her requests to describe how the school was able to identify the students targeted by the RIAA subpoenas, which contain only an IP address and time stamp, she said: “They wouldn’t have any discussion with me… so I just gave up.” -- Greg Piper
Correction: The International Intellectual Property Alliance has asked the U.S. Trade Representative to add primarily English-speaking countries to its Priority Watch List in four previous IIPA submissions to the USTR (WID Feb 12 p2). They were Australia from 1992 to 1994 and Canada in 2007.