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RIAA Details Kazaa User's Huge Song Cache

By Jon Healey
Times Staff Writer

August 28, 2003

The recording industry hinted this week at how much it knows about the file-sharing habits of people it suspects are trafficking bootlegged songs and might soon target with lawsuits.

In court papers filed late Tuesday, the Recording Industry Assn. of America detailed the more than 900 songs collected by one Kazaa file-sharing network user, claiming to know the provenance of many of the tunes.

The RIAA's inventory of the music cache was a round in its fight to learn the identity of the Kazaa user, whose screen name is "nycfashiongirl." The woman — one of more than 1,000 Internet users the RIAA is attempting to identify and might sue for allegedly violating music copyrights — is the only one fighting to keep her anonymity.

Last week, she asked a federal judge in Washington to put a temporary hold on the subpoena the RIAA issued to her Internet service provider, a subsidiary of Verizon Communications Inc. Tuesday's filing was the RIAA's response.

Its detailed analysis of the woman's music had little bearing on the battle over her identity. But it could make it harder for her — and other potential targets — to defend against a copyright infringement lawsuit.

"The only question an individual ought to be asking themselves is not, 'If I'm caught, will I be liable?,' but, 'Should I risk getting caught?' " said Matthew Oppenheim, senior vice president of business and legal affairs for the RIAA. "Because if I am caught, I will be held liable."

Critics of the RIAA's plan to sue individual file sharers said the evidence offered by the RIAA is circumstantial and doesn't prove nycfashiongirl violated copyright law.

It's possible, for example, that she was making a "fair use" of copyrighted music by downloading MP3 versions of songs she already owned, but in another format, such as CDs, said Wendy Seltzer, a staff attorney at the Electronic Frontier Foundation.

The woman's attorney, Daniel N. Ballard of Sacramento, has acknowledged that his client used the Kazaa file-sharing network. But he said in court documents that she tried more than once "to ensure that no other Kazaa user could access any of the folders on her family's computer."

Ballard argues that the 1998 Digital Millennium Copyright Act, which gives copyright owners the ability to use subpoenas to learn the identities of alleged infringers, violated her constitutional rights to privacy, due process and free association. Although U.S. District Judge John D. Bates dismissed a constitutional challenge to the law this year, Ballard says Bates did so without hearing from any Internet users directly affected by the subpoenas.

The RIAA says in Tuesday's filing that the suggestion that the woman didn't violate copyrights is disingenuous.

In a separate court document, Jonathan Whitehead, an anti-piracy lawyer with the RIAA, says the woman had more than 900 music files and more than 100 images, video files and software programs in a folder open to other Kazaa users. In addition, his filing says, the folder was still open for sharing despite two messages that the RIAA sent to nycfashiongirl warning that sharing copyrighted music was illegal.

Digital song files often include notes, or "metadata," that describe their attributes. The metadata on nycfashiongirl's files make "abundantly clear that, by and large, nycfashiongirl did not merely copy her own CDs onto her computer and place the individual recordings into the Kazaa 'share' folder," Whitehead claims.

Among other things, he says, the metadata indicate that the files were "ripped" from CDs or uploaded to the Internet by many people other than nycfashiongirl, and that numerous files also could be traced back to several Web sites offering pirated music.

Whitehead says many of the files included "explicit invitations to other users to download or further 'share' the files," suggesting they were "intended for mass distribution on a file-trading network." And several include notes claiming that they were created by the Apocalypse Production Crew, the filing notes, a group focused on music piracy whose former leader pleaded guilty in federal court last week to criminal copyright infringement.

Finally, Whitehead says, the RIAA compared nine of the songs in nycfashiongirl's folder with a database of pirated files collected three years ago from the now-defunct Napster file-sharing service.

The trade group's findings: Two-thirds of the songs had unique identifiers that matched songs from the Napster database, indicating that they probably were downloaded without permission, not copied directly from a CD that nycfashiongirl owned.

Ballard, her lawyer, said in an interview that the type of information in the RIAA filing "ought to be presented to a judge" and contested before a person's identity is revealed. The 1998 copyright law allows the RIAA to obtain a subpoena from a court clerk with no judicial review.