P2P defendant: RIAA identified an IP address, not a person

A South Carolina woman sued by the record labels for file-sharing is fighting the RIAA's attempt to amend its original complaint is arguing that the RIAA's proposed amended complaint contradicts the testimony of an expert witness that testified for the labels in the Jammie Thomas trial.

At issue is the boilerplate complaint used by the RIAA in its nearly 30,000 file-sharing lawsuits until last fall. The RIAA's standard language has come under fire in a handful of cases for its lack of specificity. One of those cases is Atlantic Records v. Catherine Njuguna, a case Ars last covered in September.

"Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others," reads the critical part of the complaint.

In Interscope v. Rodriguez, the judge refused to grant the labels a judgment in a case where the defendant failed to appear in court to fight the complaint. Judge Rudi M. Brewster wrote that the complaint used by the labels presents "no facts that would indicate that this allegation is anything more than speculation," and is "simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant."

Since that ruling, the RIAA has altered its complaints to include more details about alleged infringements, including the date and time that the its investigators detected file-sharing activity and the IP address identified. In Atlantic v. Njuguna, the RIAA wants leave to amend its complaint to provide details of Njuguna's alleged infringement.

In the response to the RIAA's motion seeking to amend its original complaint (thanks to copyright attorney Ray Beckerman for digging it up), Njuguna's attorney Jason Scott Luck points out that the language in the amended complaint directly contradicts the testimony of Doug Jacobson, the RIAA's expert witness who testified in the Thomas trial and has given depositions in several other cases.

According to the amended complaint, "Plaintiffs identified an individual using on the P2P network KaZaA at IP address 67.9.63.16 2005-10-29 on October 29, 2005 at 03:22:51 distributing 361 audio files over the Internet." But Jacobson testified that SafeNet, the RIAA's investigator, is incapable of identifying an individual. Here's the relevant testimony from Thomas' attorneys' cross-examination.

Q. Are you aware of any evidence of anything that would point to [Defendant] personally having done something as opposed to any other person?

MR. GABRIEL: Objection to the form. Lack of foundation.

A. I have examined evidence that shows 12 that the computer registered to the IP address 13 belonging to [Defendant] was used to share copyrighted material.

Q. But other than that, other than the fact that the computer was used, as you say, is there any evidence to show what natural person, what individual was the one who actually did it?

A. No.

Luck also includes testimony from one of Jacobson's depositions.

Q. The IP address alone would not tell you that, would it?

A. Would not tell you what?

Q. What individual was sharing files.

A. By "individual" do you mean flesh-and-blood person?

Q. Yes.

A. The IP address tells you the identity of the computer.

Q. It actually doesn't tell you the identity of the computer. It tells you the identity of the device.

A. That's correct... The IP address delivers to a device or location.

Q. But not a person?

A. That's correct.

Luck argues that, at best, the labels have "identified an internet location where infringing activity" took place, which he compares to identifying a defendant by means of a street address.

Of course, once it is in possession of an IP address, the RIAA files a John Doe lawsuit and then obtains an ex parte subpoena to discover the name and address of the person who was assigned that IP address. (And sometimes, that person played no role whatsoever in the alleged infringement.) But the complaints used by the RIAA don't reflect that. The RIAA's investigators didn't identify an individual in Atlantic v. Njuguna, as the complaint says, merely the IP address of a piece of Internet-facing hardware like a cable or DSL modem. They may also be able to get the IP address of the device directly connected to the hardware, which could be a PC, laptop, wireless router, or something else. Either way, it's not an individual, and the RIAA's lack of precision in its complaints is troubling.