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Music downloaders win round in court

Email|Print|Single Page| Text size + By Michael Levenson
Globe Staff / April 4, 2008

Boston University students have won what one lawyer hailed as a "David and Goliath" victory after challenging one of the recording industry's most aggressive tactics: lawsuits targeting people who illegally download music.

US District Judge Nancy Gertner ruled this week that the university cannot turn over the names of students to several major record companies that sued for the information until she can do a more in-depth review. The ruling, for the moment, quashes the companies' efforts to hold the students liable for copyright infringement, which could have resulted in thousands of dollars in fines. Lawyers who supported the students said the decision would make it harder for record companies to win some 20,000 similar cases they have brought nationwide.

"This is definitely a step in the right direction," said Raymond Sayeg, a Boston lawyer who represented one of the four BU students who challenged the record companies. "The court has recognized the right of privacy of the students."

Sayeg compared the victory to that of David over the giant Goliath in the Bible.

"You have on the one hand maybe 30 to 40 of the largest record companies in the country, and they're singling out students at institutions of higher education. So it's a real mismatch."

The decision adds a layer of protection for the thousands of people, many of them students, sued by the Recording Industry Association of America, according to Fred von Lohmann, staff attorney at the San Francisco-based Electronic Frontier Foundation, which filed a brief in support of the BU students.

"It does not mean the end of the issue," von Lohmann said. "It is not going to slow down the RIAA litigation machine, and they'll continue to sue hundreds a month all over the country. But the judge said they have more work to do if they want to prove these cases."

Undaunted, the record company organization said it would press ahead with the lawsuit.

"It's important to note that the decision is not final," said Jonathan Lamy, the organization's senior vice president of communications. "The court has put forth a specific process to address its concerns before the relevant information is transferred to us. We're confident that the court will ultimately allow us to obtain the [names], as have courts across the country in similar cases."

File-sharing exploded in popularity in the late 1990s with the advent of Napster, which allowed people to swap songs from one computer to another. A series of lawsuits by record companies killed the service in 2001 but spawned a host of imitators, such as Kazaa and Limewire. In 2003 the recording industry began to attack those services - by going after their users. The industry filed 35,000 lawsuits to stop illegal music downloading through the programs, which it blamed for billions of dollars in lost sales.

Only one of the cases has gone to trial, perhaps because defendants are cognizant that they could be ordered to pay up to $150,000 per illegally downloaded song. Most of the cases have ended in settlements of $3,000 to $4,000. Federal law forbids downloading copyrighted music without the permission of the copyright owner, although there are some limited exceptions for some educational and research uses.

"We try and settle these cases in an amount that communicates a real concern for breaking the law, and at the same time we try to be fair and reasonable," Lamy said.

Sayeg said he fields calls daily from parents whose college-age children have been sued by record companies.

"Typically what I get is a frantic call from a parent saying, 'Oh, my God, we can barely afford tuition, and now we're told we've got to pay three, four grand,' " Sayeg said.

But students are not concerned about lawsuits when they are in search of the latest song by Jay-Z.

"I think students, not just at BU, all over the place, download music through file-sharing websites," said Adil Alexander Yunis, 22, the president of the BU Student Union. Students know it is illegal, he said, but they're looking to get quick access to music.

"And that's a way to do it," Yunis said. "And the fact that they're not paying for it is why they're doing it."

The barrage of recording industry lawsuits has succeeded in scaring only a few students into downloading music legally or watching music videos on YouTube, Yunis said.

"I don't think it's put a large dent in illegal file sharing," he said, "but I think it's made students more wary."

In the case of the BU students, who are not named in the suit, the Recording Industry Association of America hired a company called MediaSentry, Inc., to scan for anyone downloading files through LimeWire and Ares. The company came up with a list of electronic addresses, which it said had been used to download tunes from Ludacris, Usher, Eminem, and other recording artists. The company linked the addresses to BU's server, and the record industry organization went to court to try to force BU to release the names of the people who used the addresses. BU responded by sending letters to students informing them of the request. The students then hired lawyers to quash the request, alleging it violated their right to privacy.

Both sides filed a raft of arguments, delving into the technical minutiae of online file sharing.

On Monday Gertner issued a 54-page ruling forbidding BU from turning over the names until it shows her its Internet service agreement with students so that she can review what privacy protections, if any, it affords. She also ordered the university to show her the names of any students who might have been using the electronic addresses, so that she can make sure only the ones who were potentially downloading music are implicated in the suit.

The students' lawyers had raised concerns that multiple students could have been using the same electronic address, if, for example, they shared the same Internet connection.

BU spokesman Colin Riley said the university was not formally named in the lawsuit and has not taken a position on the students' claims. He said BU will turn over any information the court requests.

Legal observers said Gertner's ruling, which was longer and more detailed than most on the subject, will help people fight recording industry lawsuits.

"She's acknowledging that there are important First Amendment issues at stake, and there are privacy interests at stake, and the recording industry is far from proving there is copyright infringement," said Wendy Seltzer, a fellow at the Berkman Center for Internet & Society at Harvard Law School.

Michael Levenson can be reached at mlevenson@globe.com

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