Record industry issues university four subpoenas

By Richard Nieva

The university received four subpoenas requesting the names of students from a law firm hired by the Recording Industry Association of America on Oct. 17 for alleged illegal file sharing and copyright violations, said Ron Danielson, vice provost for information services and chief information officer.

"It's getting serious," said Danielson. He said since mid-July, the school has also received eight offers of settlement through e-mail on behalf of the RIAA directed toward alleged student offenders. The offers usually serve as precursors to subpoenas.

These offers give students the option of paying a sum in lieu of a potential trial. At least three students chose to settle for about $3,000 each, said Danielson.

At least one student was told by his or her attorney that paying the amount up front would be economically cheaper than contesting the claim, Danielson said.

Danielson said he does not know the status of the other five offenders because the students have no obligation to contact or follow up with the university.

"This is between them and the music companies. The school is only a middle man," he said.

The four subpoenas legally require the university to identify students who were allegedly sharing copyrighted materials, said Danielson.

The fact that the university received subpoenas means there have already been John Doe lawsuits -- suits that are already complete with individual case numbers, missing only the person's name -- filed against the students, he said.

The university must give the RIAA's attorneys the information needed to identify alleged offenders, including name, address and phone number by Nov. 16, said attorney John Ottoboni, general legal counsel for the university.

The university notified the students that they may have been involved, gave them a copy of the subpoena and provided them with an address to contact the RIAA directly, said Ottoboni.

Though 20,000 file sharing lawsuits have been filed, the nation's first and only file sharing trial was last summer in Minnesota against 30-year-old Jammie Thomas.

Thomas was found guilty of copyright infringement and had to pay $222,000 for sharing 24 songs, or $9,250 per song, according to Wired magazine.

But as in most cases, the Santa Clara students will likely be getting a subsequent offer of settlement, but for a higher amount than the initial offer issued before the subpoena, said Danielson.

Though Santa Clara will identify the students for the RIAA, Danielson mentioned a recent movement at a handful of schools to fight the RIAA on the grounds that schools do not want to play policemen for the entertainment industry.

For example, according to an article in the Oregon Daily Emerald, Oregon Attorney General Hardy Meyers filed a motion to overturn a subpoena that the University of Oregon received from the RIAA, on the grounds that he thought it would be impossible to be certain of the alleged violator since the network access required no login.

Myers also said he thought complying with the subpoena might be in violation of the Family Education Rights and Privacy Act, which prevents the school from releasing students' personal information without their consent.

Network service employees at Oregon also tried to squash the subpoena because they felt they were not technologically able to comply with it, said Tyler Ochoa, a Santa Clara professor of law, with an area of specialization in copyright law.

"A subpoena is a court order, and you are required to comply with a court order unless you can demonstrate to the court why you shouldn't have to," said Ochoa.

Ottoboni said the university will take steps to comply legally with whatever is necessary.

"We reviewed the subpoenas to make a determination as to whether or not they were valid," said Ottoboni. "They appeared to be valid."

But though a valid subpoena requires the university's compliance, settlement offers exist outside of the Digital Millennium Copyright Act and are not legal documents. Offers of settlement are relatively new, having only been issued since February, said Danielson.

Therefore, there are some gray areas when it comes to the offers. For example, the university could choose to ignore the offers, said Danielson. There is no legal requirement for the school to forward them to the students, he said.

Santa Clara has chosen to forward the offers to the students because the university did not think it would be in the best interest of the students to ignore them, said Danielson.

The university issued a cover letter with the settlement offers stating the university was not making a judgment about the validity of the claim. The letter also suggested that the student accused of alleged copyright infringement contact an attorney.

Contact Richard Nieva at (408) 554-4546 or rnieva@scu.edu.