In its zeal to rid the world of the scourge of music sharing over peer-to-peer networks, the RIAA has unleased a barrage of lawsuits over a span of two-plus years. Two defendants are fighting back: one by exploring whether the record industry uses file sharing apps themselves, and another by insisting that a name and IP address isn't sufficient basis for a lawsuit. We talked to a lawyer involved in one of the cases to get some additional insight into what's at stake here.

UMG v. Lindor: does the music industry use P2P?

In the case of UMG v. Lindor, the defendants are asking some tough questions of the RIAA about its own use of p2p networks for sending music to radio stations, questions that the RIAA doesn't want to answer. The case covers familiar ground: the RIAA discovers an IP address involved in file sharing, attempts to tie it to somebody, and then offers that individual a chance to settle out of court. On many occasions, the would-be defendants decide to write a four-digit check to the RIAA and make the problem go away. In a few cases, the defendants have decided to fight back, with mixed results.

With UMG v. Lindor, the defendant is taking a hitherto unseen course: investigating the possible use of P2P network by RIAA member companies. On July 25, the judge directed UMG Recordings Inc. to answer a defendant's interrogatory concerning P2P usage by its employees. The RIAA objected to this line of questioning in part on the grounds that it was "not relevant to the claim or defense of any party," "not relevant to the subject matter involved in this action," and is not "reasonably calculated to lead to the discovery of admissible evidence."

The RIAA finally did answer the questionsafter a fashion. Instead of divulging whether the employees of record labels had used P2P networks, the plaintiffs merely replied that the two in-house lawyers they contacted and the head of procurement said that the record label has never registered accounts. The response (PDF) submitted by the RIAA to the court says that since they have not used "file-sharing programs" such as Kazaa to provide music to radio stations," they therefore "have no documents in their possession, custody, or control that are responsive to this Request." Ray Beckerman, the attorney for the defendant, is upset, saying that RIAA deliberately narrowed the judge's instructions to cover the conduct of the labels themselves, rather than its employees, as the interrogatory had directed.

Beckerman informed Ars Technica that the record labels have been encouraging P2P file sharing, with employees of the record labels using it to get songs out to radio stations. Radio station DJs have told Beckerman that the labels have quit sending them CDs. "Historically, the radio promo guys used to come around [to the radio stations] with CDs, but they stopped doing that," says Beckerman. "They started telling the DJs to go out and get the songs on Kazaa themselves."

Record labels using Kazaa and other P2P networks in the course of their business? That wouldn't look good in a court, especially with the labels arguing that the mere use of a P2P network indicates guilt. Beckerman believes that "encouraging misconduct"using P2P networks to get songs out to radio stationswhile simultaneously litigating against others doing the same thing undermines their legal arguments.

In a statement, an RIAA spokesperson informed Ars that they have delivered a written statement to the defendant "saying that our member companies do not use peer-to-peer to distribute to radio stations."

Elektra v. Wilke: search party

With Elektra v. Wilke, the RIAA is facing another motion for summary judgment. Paul Wilke, who is accused by the RIAA of illegally sharing music over a P2P network, says that the RIAA's lawsuit should be dismissed because his name is not "Paule Wilke" as the RIAA says in its lawsuit, he has never used any "online media distribution" systems for filesharing purposes, and that he doesn't own any of the songs the RIAA's investigators allegedly discovered.

The RIAA has responded by filing a motion for expedited discovery. It claims that despite the misspelling of his name, Wilke has been positively identified by SBC as the owner of the IP address flagged by the RIAA. As Wilke decided to file for a summary judgment against the RIAA based on lack of evidence instead of filing an answer to the RIAA's complaint, the RIAA now wants time to conduct a thorough investigation of Wilke, including looking for "evidence of copyright infringement on the Defendant's computer hard drive."

Wilke appears to be taking the position that the RIAA has not submitted enough evidence for a lawsuit to go forward. The RIAA's evidence appears to be limited to the following:

An IP address identified by Media Sentry as sharing copyrighted material Someone telling the RIAA that Paule Wilke had that IP address at some point in time.

That appears to be enough for many defendants to settle before the case even goes to court. However, Wilke and his attorneys are arguing that the limited information provided to the court by the RIAA is not enough to go forward with a suit. Instead, the court should issue a summary judgment in favor of Wilke because the evidence provided by the RIAA isn't even enough to merit a trial.

Such a ruling would be disastrous for the RIAA, as it would significantly raise the bar for future legal actions against music fans. The RIAA's response boils down to this: give us a chance to search for additional evidence against the defendant, and then we can talk about a summary judgment.

Summary judgment motions typically need to be defeated by what Beckerman describes as "competent evidence sufficient to create a material issue of fact that can be used at trial." A name, an IP address, and a list of songs doesn't rise to that level in his opinion. All the RIAA has in most cases is "suspicion and conjecture," says Beckerman

Both of these cases bear watching. If the record labels are using P2P to share music themselves, couts could view this as undermining their credibility and undercuts their legal arguments. If Wilke gets his summary judgment against the RIAA, it is likely to make it much more difficult for the RIAA to successfully litigate cases of copyright infringement when the defendants decide to fight back.