Recording industry targets 'John Does' in new lawsuits.

The Recording Industry Association of America (RIAA) recently resumed its aggressive campaign against illegal music downloading, altering its strategy slightly after an adverse ruling in December by a federal appeals court.

In Recording Industry Association of America v. Verizon Internet Services, Inc., the District of Columbia Circuit ruled that RIAA could no longer subpoena Internet service providers (ISPs) to obtain information about their subscribers unless the ISPs actually stored infringing material on their servers. (351 F.3d 1229 (D.C. Cir. 2003).)

Intention showing that its crackdown is "not missing a beat" following the ruling, RIAA has taken action against 532 individuals. Aside from an alleged love of file-sharing, all the defendants have one other thing in common, at least for now: They are all named John Doe.

Until the appellate court's ruling, the association had successfully argued that [section] 512(h) of the Digital Millennium Copyright Act (DMCA) granted it the authority--with the authorization of a court clerk--to subpoena ISPs for the names of subscribers whom the association suspected of copyright infringement. The association's original strategy-yielded more than 1,000 names, and in September hundreds of alleged illegal file-sharers found subpoenas in their mailboxes. (Recording-Industry Subpoenas Spark Online Privacy Debate, TRIAL, Nov 2003, at 12.)

The association's revised battle plan involves filing "John Doe" lawsuits, a tactic commonly used when a defendant's identity is unknown. Instead of learning a defendant's identity first and then suing, RIAA now must sue each alleged infringer as an unnamed party, discover the person's identity, and then amend the complaint to include that person's actual name.

"The difference is that now they have to literally file a lawsuit in federal court in order to propound discovery," said Daniel Ballard of Sacramento, California, who, in a different case, blocked the release of one Jane Doe's identity before the D.C. Circuit's ruling.

As the first step in its new round of litigation, RIAA filed four separate lawsuits in different district courts, with each suit listing multiple defendants. "Once they get permission to propound discovery, they'll then issue subpoenas to the ISPs," Ballard said.

Critics of RIAA's earlier tactics, who had advocated using the John Doe model from the beginning, found vindication in the appellate court ruling.

"We were obviously pleased with the Verizon decision as a step forward in due process and privacy rights for Internet users," said Wendy Seltzer, a staff attorney at the San Francisco-based Electronic Frontier Foundation (EFF), which filed an amicus brief in the case. "We still think the recording industry is making a mistake by suing its fans rather than looking for ways to let them pay for the file-sharing that they want to engage in."

Seltzer noted that the association is still facing two other ISP challenges similar to Verizon's; the appellate court ruling could affect the outcomes.

"Charter Communication's suit was going forward at the time the Verizon decision came out, and they had already gotten an adverse trial court ruling and are currently on appeal to the Eighth Circuit," she said. EFF is urging that court to follow the "well-reasoned decision" of the D.C. Circuit, she added.

The other challenge, brought by Pacific Bell, is pending in D.C. district court--before the same trial judge whose ruling in favor of RIAA last year was reversed in Verizon. "I would expect that be would throw those subpoenas out," Seltzer said.

Regardless of how it ultimately reaches targeted individuals, RIAA claims that its "education and enforcement campaign" is having the intended effect. "Awareness and legal downloads are up, while many analysts are finding that file-sharing is down," RIAA president Cary Sherman announced in a press release.

Whether the campaign actually has accomplished its twin goals of curbing illegal file-sharing and boosting music sales is debatable. Some industry trackers have said that the years-long slide in music sales slowed noticeably immediately after the first round of lawsuits was announced.

Other experts claim that any surge in sales or dip in downloading is seasonal, and that file-sharing is at an all-time high. What many people do agree on is that RIAA has scored a victory by stigmatizing the practice of illegal music downloading.

"The question you have to ask is whether the education that America has received is worth the problems that it has caused 12-year-old girls, and morns and dads across the country," said Ballard. "It's a hell of a way to get a message out."