RIAA Pre-Litigation Letters Sent to MIT

23 Students Accused of Copyright Violations

Twenty-three MIT students have been sent pre-litigation settlement letters after allegedly illegally downloading copyrighted audio recordings, according to a press release from the Recording Industry Association of America.

MIT received the pre-litigation letters last Wednesday, May 2, said Daniel Jacobs, legal assistant in MIT's Senior Counsel's Office. At that time, Jacobs said that the letters would have to be analyzed before MIT considered forwarding them to students. These are the first RIAA pre-litigation letters received by MIT, according to Jacobs.

As of yesterday, MIT had forwarded the letters on to students, said Timothy J. McGovern, manager of IT Security Support for Information Services and Technology. McGovern also said that MIT suggested students talk with advisers, family members, or attorneys in considering a response to a pre-litigation letter.

McGovern declined to discuss legal specifics regarding the cases, saying the letters were part of a student's permanent record and thus legally protected by the Family Educational Rights and Privacy Act.

According to a spokeswoman from the RIAA, the letters are part of a new anti-piracy initiative announced in February that offers students a chance to avoid a lawsuit by settling outside of court. The spokeswoman also said that the letters allow students to settle at a discounted rate compared to the damages sought in a civil suit.

The new initiative is a shift from the RIAA's previous strategy of filing "John Doe" lawsuits and subpoenas that order MIT to divulge the name of a student. Instead, the RIAA contacts schools directly with pre-litigation letters containing IP addresses — addresses used to uniquely define computers on the Internet — of allegedly infringing users and the dates of the offenses. The RIAA then requests that schools forward the letters on to users, according to an RIAA press release. The spokeswoman said that the majority of schools that received letters had forwarded them on to students.

According to a sample pre-litigation letter provided by the RIAA, the settlement process involves "lump sum" payment to record companies and deletion of all material infringing on copyright. The agreement also states that the party accused of copyright infringement agrees to not infringe on "any other sound recording protected under federal or state law … whether now in existence or later created" or the agreement may become void.

A sample pre-litigation settlement agreement is available at http://www-tech.mit.edu/V127/N24/riaa/letter.pdf.

Jeffrey I. Schiller '79, Network Manager for IS&T, said that the letters also act as a preserve order for MIT, requiring the Institute to save information about the user of a specific IP. MIT maintains a database of IP addresses assigned to users and stores the information for 30 days, said Schiller. "Suppose on day 29 we get one of the pre-litigation notices. Once we get one of these, we basically … have to save the information forever."

Increased enforcement

McGovern stated that "most" of the students who were sent pre-litigation letters had previously received Digital Millennium Copyright Act takedown notices regarding the music in question. Schiller said that MIT, acting as an Internet Service Provider, forwards DMCA notices to students accused of violating copyright law.

According to the IS&T Web site, a student's first case of alleged copyright infringement results in a warning, as long as the student responds that the copyrighted material was removed from their computer. A second violation results in temporary suspension of network access and a meeting with IS&T representatives. A third violation results in an indefinite suspension of network access and referral to the Committee on Discipline.

McGovern said he saw "an unusual increase in the total number of takedown notices" between the 2005-2006 and 2006-2007 academic years, estimating that infringement notices increased by "several hundred percent."

McGovern did not have statistics immediately available, but attributed the spike to increased enforcement by television, movie, and software industries. McGovern also said he hoped MIT students would not be the target of future lawsuits but said that there had been no talks about restricting access to peer-to-peer (P2P) services. Other universities restrict bandwidth available to P2P applications in an effort to stem copyright infringement and some have begun to ban P2P applications altogether. Last month, Ohio University banned all P2P applications, writing in a statement on their Web site that peer-to-peer traffic "consumes a disproportionate amount of resources, both in bandwidth and human technical support."

A statement on MIT's Office of Intellectual Property Counsel's Web page says that MIT "is firmly against the unauthorized uploading or downloading and sharing of … copyrighted material" but also that "MIT recognizes the many legal benefits of P2P software."

Schiller said that MIT has "no plans" to restrict P2P traffic or block P2P applications, and seemed confident that those policies were unlikely to change. "We view ourselves as an ISP," said Schiller, describing MIT's hands-off network policy.

Schiller also said that P2P programs were becoming increasingly difficult to detect, as applications can conceal traffic in a variety of ways, including encrypting payload data.

Moreover, Schiller cautioned that not all students who receive DMCA notices necessarily violated copyright law. Shiller said that it is becoming "quite difficult" to ensure IP addresses were actually used for infringement. "I've seen notices for random IP addresses that we would have never assigned," said Schiller.

Furthermore, the complexity of some protocols such as BitTorrent has caused erroneous DMCA notices to be sent. A discussion on the EDUCAUSE Security Discussion Group last month included concerns that HBO had sent a series of inaccurate DMCA notices with incorrect infringement times. The discussion also suggested that HBO was relying on questionable and possibly forged data from BitTorrent "trackers" — directory servers that contain information about IPs downloading a file — that could be readily forged.