[Infowarrior] - Judge quashes RIAA subpoenas in campus file-sharing case

[Richard Forno]

Judge quashes RIAA subpoenas in campus file-sharing case

By Nate Anderson | Published: September 26, 2007 - 03:41PM CT

http://arstechnica.com/news.ars/post/20070926-judge-quashes-two-riaa-subpoen
as-against-florida-students.html

A Florida lawyer convinced a judge yesterday to quash several RIAA subpoenas
directed against anonymous University of South Florida students. The
subpoenas, which use the secretive ex parte discovery process, were shot
down by the judge on narrow technical grounds that seem limited to this
particular case. Still, attorney Michael Wasylik tells Ars that his victory
still matters because it shows that RIAA attorneys "have to obey the rules"
when they use the court system.

Until this point, Interscope v. Does 1-40 has proceeded much like other
cases against college students across the country. RIAA lawyers move on an
aggressive schedule in such cases; this case was filed in June, subpoenas
were authorized in July, were sent out immediately, and were due back by
mid-August.

Under ex parte discovery rules, the students aren't notified until after a
subpoena has already been granted, giving them little time to contest the
process. Unless they act quickly, the RIAA gets the identifying information
it needs from the university in question, then usually dismisses the case
and files individual suits against the students (whose identities it now
knows). It's an aggressive strategy, and as Wasylik points out, is one built
on speed and stealth.

In this case, the suit was filed after school had ended for the summer, and
the subpoena information was requested before students returned. Once the
university received the subpoenas in July, it did attempt to forward them to
the students' summer addresses. Not all addresses were correct or up to
date, though, and at least one student was traveling in Europe and could not
be reached by his agitated parents, who received the letter.

The upshot: Wasylik represented only two of the 40 students in court, and
the judge's decision to quash the subpoenas applies only to them. The other
38 defendants have already had their information released. These defendants
might not even have known about the case until they arrived back at school
to a nasty surprise.

Several similar motions to quash this form of subpoena have been filed in
cases across the country, but this is the first to be decided. It's a "crack
in the dam, a flaw in the armor," Wasylik tells Ars, but he fully expects
the RIAA to fix the technical service errors and try again (the judge did
not quash the subpoenas on material grounds, even though Wasylik made
several such arguments). To him, though, it's encouraging to see that the
RIAA can be beaten, that it does make mistakes. It also provides a roadmap
for attorneys in similar cases to follow.

The RIAA wins default judgments in most of its cases after defendants never
show up; many other defendants also settle rather than face court. Opposing
them at key points in litigation, though, can be effective, in Wasylik's
view. Not even the RIAA can afford to fully litigate the more than 20,000
suits it has filed to date. If enough defendants fight back, the group might
need to change tactics, especially if it has to keep paying attorneys' fees.