Several Appalachian State University students downloaded a gigabyte of trouble in October, when the Recording Industry Association of America (RIAA) filed suit against them for illegally downloading copyrighted materials from the Internet. As the popularity of downloading music and movies from the Internet through peer-to-peer file-sharing services has grown, the RIAA has let loose the dogs of litigation, which have sniffed out many an illegal file-sharing college student across the country. According to Appalachian State University attorney Dayton Cole, the RIAA issued a subpoena to the university to obtain identifying information about the users of the particular machines identified on the Internet as containing illegally-obtained copyrighted musical works. ASU, however, is not a party to the litigation, meaning there is no liability on ASU’s part, Cole said. “The university, for several years since the passage of the Digital Millennium Copyright Act (DMCA), has taken measures to respond to copyright owners who claim that they have found infringing material on computers attached to our network,” Cole said. “As an Internet service provider under that federal law, we take the notices that are given to us by the copyright owners, identify the users that are alleged to be conducting infringing activity, and determine whether or not it’s actually going on. If it is, we take steps to remove access to that material from the Internet, essentially so someone can’t download it further.” The university avoids liability by responding promptly to such notices, and if suspected offenders allege they’re engaged in first amendment or fair use activity, the university provides such information to the copyright owners, who will determine whether or not to take action, Cole said. As an educational institution, however, Appalachian State is subject to the Family Educational Rights and Privacy Act (FERPA), which makes students’ educational records confidential with the exception of directory information, Cole said, such as name, address, e-mail address, etc. This is the first time to Cole’s knowledge that a lawsuit has actually been filed against an ASU student, though the university has received an abundance of DMCA violation notices. Such matters are usually cleared up swiftly when the offending user agrees to erase his or her computer and storage devices of copyright-infringed material. In this instance, however, suit was filed in the U.S. District Court for the Western District in Statesville, Cole said, adding that a court date has not yet been set, as the subpoena was only served more than a week ago. The university has a deadline of Nov. 8 to provide the alleged offenders’ information to the plaintiffs, and steps have been taken to notify the individual defendants, Cole said. “We’ve notified the students about the lawsuit and provided copies of the subpoena and related materials, provided by the [RIAA], and have strongly encouraged them to seek independent legal counsel,” Cole said. “The university is not in a position to provide legal counsel or otherwise represent them in claims of this sort.” In the lawsuit are allegations that the RIAA discovered many files or copies of copyrighted works on the computers in question, Cole said, meaning the RIAA will claim that infringements have been repeated multiple times. “Technically under the copyright law, each time a copy is made without authorization or a copy is distributed without authorization, each of those acts would be considered a separate infringement,” he said. According to 17 U.S. Code, Section 504, offenders could pay a “sum no less than $750 or more than $30,000.” Cole elaborated further, saying such fines are charged for each act of infringement. However, Cole read RIAA literature that indicated the association attempts to work out settlements with suspected individuals as a first step. “I have no way of verifying the accuracy, but I’ve heard from colleges around the country that the average settlement the industry reaches with students ranges between $5,000 and $12,000,” Cole said. Under Appalachian’s code of student conduct, students charged with a violation can face a range of disciplinary action, such as months of probation or, for more serious cases, suspension, Cole said. “I don’t know that anybody at the university is interested in burdening these students with disciplinary charges, while they’re also trying to deal with civil claims,” Cole said, acknowledging, though, that the university certainly has the right to do so. While two of the students have been made aware of the subpoenas, the remaining user has yet to be identified — one of the identified computers was a system in a university public access area. “So it’s not clear at all to us that we’ll be able to identify any particular person of having used that machine to do what the plaintiffs have alleged that’s been done,” Cole said. When asked if the university could be held accountable for the identified computer, Cole said he doubted that anyone would be liable if the user could not be identified, though the RIAA is still authorized under federal law to investigate. “But we’ll cooperate as we should in any litigation matter like this,” Cole said. “There’s no basis for a claim against the university, to my knowledge. We will comply with the subpoena, and essentially it’s in the hands of the plaintiffs and the defendants, whether they try to work something out without proceeding with litigation.” To address the incident, the university is continuing to stress awareness and education to curb illegal file-sharing. “The university has been very straightforward with students, telling them directly that it is against the law to download copyrighted material, and that they are liable for prosecution,” said Lynn Drury, ASU’s associate vice chancellor for public affairs. “Short of denying people access to the Internet, there’s nothing we could or should do.” As for a device or change in policy to prevent further file-sharing fiascos, Appalachian State will follow suit with the University of North Carolina system. “Under (system president) Molly Broad’s leadership, four UNC system campuses are conducting pilot (studies) with four different programs, whereby the university enters into an agreement with a provider and for a certain fee, students can legally download,” Drury said. An Oct. 1 memo from Broad reports the N.C. School of the Arts is partnering with Apple for the study, N.C. A&T with Ruckus Network, UNC-Wilmington with Cdigix, and Western Carolina University with Rhapsody to develop a proposal for a service provider to partner with the system in such an agreement. If implemented, the program could be funded through student fees of between $2 and $5 per month, as done with other similar services nationwide, Drury said. “The university system is going to take a look at those four pilot programs at the end of next year, and I think the idea would be to make a decision on which one works the best, then either make it available to all the other campuses or mandate it,” Drury said.
•Frank Ruggiero may be contacted |