Facing the music

File-sharing lawsuits, delay by University prove costly for 13 students
By Matthew Erikson

Lacey Fisher thought it was junk mail when she first saw the e-mail’s subject line: “Confidential – Recording Industry Lawsuit Subpoena for Student Records.”

Fisher, a Garden City junior, couldn’t have predicted the frantic phone call to her parents, the summer she would spend working to pay off her debt, or the new identity she had received: Jane Doe No. 9, one of 13 John and Jane Does who had been caught illegally sharing music files on the KU Internet network.

She didn’t yet know that she was on the front lines of the music industry’s battle against copyright-infringing college students who download music for free rather than buying songs from the iTunes store or CDs from Best Buy. She didn’t know that she, a college student receiving $20 a week for her job as a resident assistant, would soon hand over $4,000 to multimillion-dollar music corporations. And she didn’t know that the University could have saved her $1,000 by telling her more than six months before that a lawsuit was pending against her, but didn’t.

Many of the college students who download more than one billion songs illegally each year through services such as LimeWire don’t know that they may be entering the recording industry’s bad-luck file-sharing lottery, where the prize is a copyright infringement lawsuit. Students whose numbers are called in this lottery must decide quickly whether to pay a settlement of $3,000 to $4,000 or to fight the lawsuit in court, an uphill battle that could cost thousands in legal fees. And universities such as KU must decide whether to help the record companies identify the students who have lawsuits hanging over their heads.

THE UNLUCKY 13

Lacey Fisher’s lottery number was called at 5:59 a.m. on June 23, 2007.

That was when, according to court documents, the Recording Industry Association of America found her sharing 187 copyrighted music files over the Gnutella file-sharing network – the network used by the popular software LimeWire – including songs by Rihanna, Outkast and Fall Out Boy.

Fisher was living in Oliver Hall, working as a conference assistant for the Department of Student Housing. But she wouldn’t know of her fate until more than seven months after she was caught.

It was Feb. 11 of this year, when Fisher checked her e-mail in her room in Corbin Hall, where she is an RA. She almost ignored the message with “Confidential” in the subject line but she decided she should read it.

“I just wasn’t expecting a subpoena about downloading music,” she said.

But that’s exactly what she saw – a court order requiring the University to turn over to 13 record companies the names, addresses, phone numbers and e-mail addresses of Fisher and 12 others accused of copyright infringement.

A letter from a University attorney, attached to the e-mail and also sent to her home in Garden City, told her the RIAA had already filed lawsuits against the 13 students – or, at least, against 14 “John Does,” because it did not know their names.

The University found that two of the “Does” were no longer students, and two of the “Does” turned out to be the same person.

In the eyes of the record companies, Fisher was John Doe No. 9, though she preferred to go by Jane Doe.

Fisher’s head immediately swirled with horror stories she’d heard of people settling with the record companies for thousands of dollars, and she remembered hearing of one woman who had to pay more than $200,000 for just 24 shared songs. That woman, a single mother in Minnesota, was the defendant in the first U.S. file-sharing lawsuit to go before a jury.

She also thought about all the people she knew who’d illegally downloaded music, movies and TV shows and hadn’t faced any consequences.

“Then I got frustrated, real frustrated,” Fisher said, “because it’s like probably 90 percent, if not more, of people our age are guilty of this.”

Another of the 13 KU students sued by the record companies, John Doe No. 10 in the lawsuit, requested that his name not be used in this story. Doe No. 10, a Wichita sophomore, was detected sharing 114 music files April 21, 2007, while living in Oliver Hall. He said the e-mail informing of him of the lawsuit confused him at first.

“At first, I didn’t even know what it was, other than it was from the RIAA, and they didn’t sound happy,” he said.

Doe No. 10 showed the e-mail to a friend’s father, who told him it might be a hoax. Then, he took it to Legal Services for Students, where an attorney told him the record companies were trying to discover his identity and file a lawsuit against him.

He immediately feared that the release of his identity as a known copyright infringer could hurt his chances of finding a mechanical engineering job after graduating.

“I was pretty crushed,” he said.

But Doe No. 10 and Fisher had to overcome their shock that the recording industry was after them, and fast. They each had until March 5, about three weeks later, to choose their next step: Settle with the RIAA now, or hire a lawyer and battle a multibillion-dollar industry in court.

Swearing to herself out of shock and frustration, Fisher picked up the phone and called her mother.

A NATIONWIDE BATTLE

Lacey Fisher, John Doe No. 10 and the 11 other current and former KU students swept up in the record industry’s lawsuits are targets in a campaign by the RIAA to deter campus copyright infringers by suing small groups of students at colleges nationwide.>

Since February 2007, the RIAA – which represents record companies that produce about 90 percent of U.S. music sales – has sent about 5,400 pre-lawsuit letters to students it accuses of infringing music copyrights while using university Internet networks. The letters warn their targets of an impending copyright infringement lawsuit and give a deadline for the accused file-sharer to settle with the RIAA before it files the suit.

The students can settle for about $3,000 before the RIAA files a lawsuit, according to several university attorneys around the country who have met with students targeted in the campaign.

At that point, the RIAA knows only the Internet Protocol, or IP, addresses of accused copyright infringers. An IP address is an identification number for a computer accessing the Internet. The RIAA asks the schools to identify the targeted people by their IP addresses and send the letters on to them.

The University did not forward the letters on to the targeted students when it first received them in Summer 2007.

Consequently, in September, the record companies filed the “John Doe” lawsuits and requested a court order to require the University to reveal identities, and the judge granted the request in October. The University received a subpoena in February and, more than six months after first learning of the lawsuits, told the 13 students for the first time that they were being sued. By then, the RIAA’s settlement offer had risen from $3,000 to $4,000.

RIAA spokeswoman Liz Kennedy said the RIAA was conducting the lawsuit campaign to deter college students who illegally download music at very high rates. She pointed to studies such as one from the market research company NPD in 2006 that found that college students, who made up only 10 percent of the general population, made up 28 percent of the people using file-sharing networks. The company also found that college students made more than 1.3 billion illegal downloads in 2006.

Kennedy said the RIAA wanted to convince students that downloading music for free was not worth the risk of an expensive settlement.

A STORY TO TELL

Fisher wasted no time telling her story to friends, family and nearly anyone who would listen, she said.

“I just don’t want to see it happen to everybody else,” she said.

Many of Fisher’s family and friends, including avid music downloaders, stopped downloading music from file-sharing services after she told them about her run-in with the recording industry, she said.

She told her boss at Corbin about her problem, as well as the other RAs. The RAs bought her an iTunes music store gift card to help her restock her music collection, which she had erased after being sued, she said.

She called a meeting for students living on her floor and told them about her legal troubles. She said their shocked faces showed they got the RIAA’s message: This could happen to anyone who illegally downloads.

“It got everybody pretty shook up,” she said.

When Fisher called her mother immediately after she read the lawsuit e-mail, she heard the expected “I told you so.”

But both her parents sympathized with her bad luck in being one of the few among millions of illegal downloaders forced to pay up, she said.

“You kind of always think that, yeah, right, you’re not going to get sued for music downloads,” Fisher said. “There’s people doing far worse things.”

Fisher said she hadn’t downloaded as much music as some of her friends, although she’d started using file-sharing services in eighth or ninth grade.

John Doe No. 10 said he usually kept his LimeWire music folder small, and court documents showed the RIAA detected him sharing 114 songs, roughly the contents of 10 CDs. He said he would sometimes go out and buy the music he had downloaded if he liked it.

Doe No. 10 said he felt intimidated by the possibility of an RIAA lawsuit. Like most college students, he said he had never had any legal trouble before, especially against a “very large, very rich opposition” such as the RIAA.

With the March 5 deadline approaching fast Fisher asked her lawyer what she should do, and he told her she should settle out of court, avoiding court fees, lawyer costs and the possible release of her name and other private information.

Doe No. 10 got the same advice from his lawyer: settle.

They both had to pay $4,000 – no small sum for someone getting by on an RA’s pay of a $40 check every two weeks.

A COSTLY CHOICE

The settlement cost would have been $3,000 – $1,000 less – if it weren’t for the University’s decision last summer to stay out of the conflict between its students and the record companies.

When the University did not forward the RIAA’s first letters to the lawsuit targets, the record companies filed lawsuits against the people who had used the IP addresses, calling them “John Does” because it didn’t know their names.

The RIAA’s settlement offer jumps after it has filed “John Doe” lawsuits, according to attorneys from several universities from around the country. The University did not give its students a chance to settle before they became “John Does,” costing them about $1,000 each.

John Doe No. 10 said he wished the University had told him about the pending lawsuit against him when it first found out about it in July or August.

“If they get something from an outside source that deals with students, the students should be one of the first to know,” he said. “I mean, it’s directly affecting them.”

Todd Cohen, director of University Relations, said the University decided not to forward the original letters last summer based on the advice of its attorneys in the office of the general counsel.

He said the record companies tried to get universities to identify lawsuit targets for them in an attempt to save time and money, and the University decided it should not act as the RIAA’s agent.

“Our viewpoint is that there needs to be a due process,” Cohen said. “If they want that information, go to court.”

Cohen said other universities had also refused to forward the letters, including the University of Wisconsin-Madison.

The University of Nebraska-Lincoln and the University of Texas, each of which has received more than 150 of the RIAA’s lawsuit warning letters, both immediately forwarded the letters on to their students.

Attorney Raymond Schiflett, director of student legal services at Texas, who has advised many students who’ve been RIAA lawsuit targets, said it was in the best interest of students for universities to forward the RIAA’s letters.

“It sounds noble on the front end, like, ‘We’re going to protect your privacy,’ until you’ve realized you’ve suddenly lost a thousand dollars,” Schiflett said. “Then it’s not so noble.”

Tom Keefe, an attorney in Nebraska’s student legal services department, agreed that forwarding the pre-lawsuit letters was the better choice for students targeted by the RIAA. He said this gave students more time to decide what to do, along with an opportunity for a cheaper settlement.

Patrick Knorr, general manager of private Internet service provider Sunflower Broadband in Lawrence, said Sunflower would “absolutely” forward a pre-lawsuit letter to one of its customers, as long as it was confident that it could correctly identify the user being targeted. Knorr said this would be in the best interest of the customer.

Fisher said she received an e-mail from the University earlier in the school year telling her she’d been detected illegally sharing music files, but it did not tell her she was about to be sued.

She said she wished the University had considered her interests more in its decision.

“It’s sort of shocking, because I kind of feel like they would rather protect the University as a whole than their students individually,” Fisher said.

James Pottorff, University general counsel, declined to comment on the advice his office gave to the University.

Marlesa Roney, vice provost for student success, who participated in the decision to act on attorneys’ advice and not forward the letters, said she felt bad for the students who got caught by the RIAA, but the University had tried to do what was best.

“In a situation like this, sometimes there isn’t an answer that meets everyone’s needs in the best way possible,” Roney said.

Tracy Mitrano, information technology director at Cornell University in Ithaca, N.Y, said the decision whether to forward the RIAA’s letters was a complicated one for universities, and she didn’t want to endorse any one decision. She said she understood the University’s argument that it wasn’t its role to help the RIAA identify lawsuit targets, but she said the decision could have difficult consequences.

“It would be really hard, then, when a parent calls and they say, ‘Why didn’t you tell us?’ “ Mitrano said.

She said a university would do well to include students or student government in the decision whether to forward the letters, giving students all the information and asking them what would be best for them.

“There is an administrative burden for the institution,” Mitrano said, “but it’s really the student that faces the music.”

FIGHTING BACK

They may not have gotten to help decide the University’s policy, but at least two of the 13 “John Does” have decided to fight the powerful record companies, at least for now.

John Does No. 6 and 11 went to Lawrence attorney Karan Thadani after they found out about their lawsuits. Thadani went back to his law office and discussed with the other two attorneys there – his fiancée, Joni Johnson, and her father, John C. Johnson – whether to represent the two nervous college students being sued by a multibillion-dollar industry.

They decided to go for it.

“We’re lawyers,” Thadani said. “We decided to help them.”

John Johnson started the law office two years ago when he moved to Lawrence from the small central Kansas town of Hillsboro, where he’d run a solo law practice for 33 years. He started the office with his daughter, and Thadani joined in September 2007.

Opposing Thadani, who’s handling the case for the Johnson office, is Kansas City-based law firm Lathrop & Gage on the RIAA’s side. Claiming to be the oldest law firm west of the Mississippi River, Lathrop & Gage has 10 offices spanning the country and employs nearly 300 attorneys.

“We’re a small firm sitting here helping some students and the plaintiffs are pretty well-organized,” John Johnson said. “This is a nationwide thing.”

Thadani said he knew that the RIAA had, with a few exceptions, gotten the settlements it wanted out of its previous copyright infringement lawsuits. Johnson said he and Thadani would not be intimidated by the power of their opposition.

Thadani and Johnson first asked the judge to throw out the subpoenas served on the University so that the record companies couldn’t get the students’ names. The motion to quash the subpoenas was denied.

Johnson said their next move would depend on the RIAA’s next move. He guessed that the record companies would sue or offer settlements to each student after they obtained the students’ information.

Liz Kennedy, the RIAA spokeswoman, said she did not know when the RIAA would proceed with the lawsuits against the students who hadn’t settled.

Raymond Schiflett, attorney at the University of Texas, said the RIAA usually raised its settlement offer to about $5,000 after it got the students’ information and began individual lawsuits.

Johnson called the record companies’ lawsuit campaign “greedy.” He said the companies were using the lawsuits to meet business goals, rather than to correct injustices against them as lawsuits are traditionally meant to do.

“I think they’re using the judicial system as a sledgehammer,” Johnson said, “and I don’t think that’s right.”

Ray Beckerman, a New York City attorney who operates the blog “Recording Industry vs. The People,” called the record companies’ practice of filing copyright infringement lawsuits an “extortion ring.”

“The cases are based on fabricated evidence, they’re based on invented theories of law, and they’re brought by giant multinational corporations for no reason but to oppress decent, hardworking people,” Beckerman said.

For example, Beckerman pointed to the record companies’ method of obtaining subpoenas for students’ information ex parte – meaning that the judge orders the subpoenas without giving the defendants representation or notification.

The record companies argue that the subpoenas must be ordered quickly because universities may delete the records that allow them to identify the students being sued.

Two judges have denied the RIAA’s request for quick discovery of identities, and the RIAA has lost a few of its infringement cases, including one in Oklahoma in 2006.

One KU economist challenges the record industry’s claim that its sinking revenues are due to increased file-sharing. Koleman Strumpf, Koch professor of economics, researched the effect of illegal downloads on the music industry for a study released in a peer-reviewed journal last year.

He and his co-researcher concluded that downloads had little to no effect on album sales. The study compared sales and illegal downloads of top-selling albums.

“We think file-sharing is largely about people getting access to music that they never would have bought to begin with,” Strumpf said. He guessed that the record industry’s revenues have fallen because consumers view DVDs as a better value or because the iTunes store allows customers to buy individual songs instead of full albums.

However, Kennedy, the RIAA spokeswoman, said file-sharing did take a bite out of profits and jobs. She cited a 2007 study by the Institute for Policy Innovation, a research group, that said music piracy caused the U.S. economy to lose 71,000 jobs and U.S. workers to lose $2.7 billion in wages each year.

Lacey Fisher said she understood that what she did was illegal, but she said the record companies’ tactic of making examples out of a small number of college students still seemed unfair.

“I just don’t appreciate the RIAA taking money from us poor kids,” she said.

John Doe No. 10 agreed the punishment was excessive.

“I think I deserved to get in trouble for it. I don’t know if getting charged $4,000 is exactly justice,” he said

This is not the first time KU students have had to answer to the RIAA’s legal threats. Charli Johnson, a former KU student who later transferred to Emporia State, got a letter from a law firm at her off-campus apartment in Summer 2004. She wondered if her father, a lawyer, may have gotten her an internship. Instead, the letter told her that the record industry was about to sue her for copyright infringement.

Johnson discussed her options with her father, but she said she was intimidated by the impressive evidence the RIAA presented, including a list of all 592 songs she had been sharing.

“It’s kind of creepy,” she said.

Convinced she couldn’t win in court, she settled for about $3,000 (she made a legal agreement not to reveal the exact amount). Johnson, now a teacher in Arkansas City, took out a loan to pay the bill.

‘A SLAP IN THE FACE’

Justified or not, the record companies have collected $3,000 from Johnson and $4,000 from Lacey Fisher, John Doe No. 10 and five other KU students. Six others will probably pay up, too, judging from the RIAA’s track record.

Fisher and Doe No. 10 got money from their parents to pay their settlements, and now they each owe their parents $4,000.

Fisher will use the money from her summer job, at a lake resort in Utah, to pay her parents back. She said she should make just about $4,000.

She said her parents consoled her by telling her that most people had some kind of trying experience growing up, and paying $4,000 to some record companies might not be as bad as getting a DUI or something worse.

Doe No. 10 said he agreed to give his parents half his income until his debt was paid off, starting with whatever job he finds this summer.

As stressful and costly as his experience was, he admitted one thing: The record company’s strategy works. He’ll never download illegally again.

“I already knew it was wrong when I was doing it,” he said, “but I guess I kind of needed a slap in the face to stop.”

— Edited by Patrick De Oliveira

How’d They Get Caught?

The RIAA does not publicly discuss its methods of catching illegal file-sharers. But in court documents, the RIAA says it uses a third-party investigator that often just downloads songs shared by others on file-sharing networks, then checks to see if the song is copyrighted.

Laura Diaz Moore, an attorney at Legal Services for Students, said many students don’t know how to stop sharing music on software like LimeWire. She said other students try to uninstall LimeWire but don’t know how to completely erase the program from their computers.

The University of Chicago provides instructions to stop sharing files in LimeWire, and the University of Delaware has instructions to completely uninstall LimeWire and other file-sharing programs.

Zero Tolerance?

Last summer, the University announced a new zero-tolerance policy for students caught illegally file-sharing on the KU network. However, the new policy has not been as strict as it may have seemed then.

Along with filing copyright infringement lawsuits, the RIAA and other groups send notices to colleges and universities telling them an Internet user has been caught file-sharing, and the schools can decide how to react to the notices. The new zero-tolerance policy said that any student mentioned in one of these notices would have his or her Internet connection shut off.

But Jane Tuttle, assistant to the vice provost for student success, said most students who have been caught have been able to appeal and restore their connections. She said she wanted the offending students to remove the files they were caught sharing and make sure that the University would not receive a notice about them again.

Tuttle said that, as of March 31, the University had denied only two of the 116 students who had appealed to reconnect their Internet under the zero-tolerance policy. The policy began Aug. 1.

Stacey Pope, Topeka sophomore, said she was caught sharing an Avril Lavigne song in Lewis Hall earlier this year but was able to get her Internet restored with an appeal. She said she had downloaded in the residence halls because she thought the University was still using its old three-strikes policy. She said her roommate got caught file-sharing the previous year, and she just had to take an online quiz.

“I found out the punishment just wasn’t severe at all,” Pope said. “But then they cracked down on it this year.”

What Could You Get For $4,000?

Some things you could buy for $4,000 — the amount seven students have paid the music industry to avoid copyright infringement lawsuits — to get more music in your life:

-260 music CDs, at an average price of $15

-A 32-gigabyte iPod Touch ($500 plus tax), plus about 3,500 songs from the iTunes store for $.99 each

-A PlayStation 3 system ($400), the games “Guitar Hero III” ($100) and “Rock Band” ($170), and a top-of-the-line Bose home theater system ($3,000)

-A trip for you and three friends to see Kanye West, Radiohead and more than 100 other bands perform at the Lollapalooza music festival in Chicago in August, including tickets to all three days of the festival ($820); airfare, hotel and a rental car ($1,100 total); plus about $500 spending money for each person.

Sources: BestBuy.com, Lollapalooza.com, Priceline.com