A New York woman, identified only as "nycfashiongirl," has become the first alleged illegal file trader to fight a copyright subpoena served by the music industry on her Internet provider.
Nycfashiongirl's lawyers have asked a federal magistrate to delay the subpoena till at least Sept. 10, while they complete a lawsuit against her accusers, the Recording Industry Association of America. The music industry wants her ISP Verizon Internet Services, to turn over her name, address, phone number and e-mail address.
The lawyers, Richard S. Ugelow, Glenn W. Peterson and Daniel N. Ballardare, are suggesting that the recording industry broke the law during its investigation of Nycfashiongirl and violated constitutional protections when it searched music files on her computers.
"This is more invasive than someone having secret access to the library books you check out or the videos you rent," Peterson said in a statement. "The recent efforts of the music industry to root out piracy have addressed a uniquely contemporary problem with Draconian methods - good old-fashioned intimidation combined with access to personal information that would make George Orwell blush."
Court papers reportedly indicate that the lawyers will allege that the RIAA violated state and federal laws and Fourth Amendment protections against unreasonable searches, when it intercepted the woman's Internet address during its review of file sharing networks. The legal motion, filed in Washington D.C., also alleges that the subpoena process has violated her rights to due process, privacy and anonymous association - and her contract with Verizon.
Nycfashiongirl is the first person to fight the estimated 1,300 similar subpoenas issued by the RIAA. She is accused of offering more than 900 copyrighted songs for download along with 200 other computer files and at least one movie file. The court orders used to identify downloaders are intended to gather information to file copyright lawsuits against them.
The RIAA has rejected the lawyers' claim that it has improperly affiliated itself with law enforcement during the subpoena process and insists that Fourth Amendment provisions do not apply. It contends that a federal court has already upheld the subpoena process and ruled that file traders are not anonymous when distributing music online.
Nycfashiongirl must first petition the court for the right to challenge the subpoena herself.
The Electronic Frontier Foundation (EFF), in San Francisco, which is assisting others who have received subpoenas, has pointed out that in libel and defamation cases, the law allows individuals to intervene in ISP subpoenas when their privacy is at stake. EFF has pointed out correctly that individuals must be given the ability to challenge the subpoenas before their identities are revealed.
If it is found, for instance, that the music files on their computers were ripped from their own collection of purchased music, the RIAA has no right to their personal information. Court documents reportedly indicate that Nycfashiongirl used the Kazaa P2P software as a music player to listen to music she ripped from her own CDs and other music that was preloaded on her computer. She says she also participated in Kazaa file trading but tried to block other downloaders from accessing her files.
No matter what the outcome of her fight, nycfashiongirl should be saluted for being the first to fight the RIAA subpoenas. She will likely encourage others to take the same steps and ultimately help halt this suspension of due process sparked by the RIAA's wave of subpoenas.