(This article originally appeared on ArtistsHouseMusic.org.)

The Recording Industry Association of America (RIAA) is the trade group that represents the US recording industry. While not every label is a member, there’s a huge list including all of the major labels. Their primary purpose over the past decade has been to lobby Congress for tougher copyright laws and penalties and to vigorously defend their intellectual property by suing file sharers. So far they have sued more than 18,000 people. The process works something like this:

The RIAA starts with IP addresses and time stamp data harvested from bit torrent clients and p2p file sharing programs. They take this data and file a lawsuit where the headquarters for the infringer’s Internet Service Provider is located. Because the identity of the people isn’t known to the RIAA – only the IP address – they seek with these lawsuits through ex parte motions to force the ISP to reveal to them the personal information tied to the account using the IP address at a given date and time.

An ex parte motion is where the court only hears one side of the case before issuing a ruling. It is typically only issued under exceptional circumstances since the courts are sharply limited by the Fifth and Fourteenth Amendments which provide that a person can’t be deprived of any interest in liberty or property without due process of law.

However, the RIAA has argued that these are exceptional circumstances because 1. they don’t know who they are accusing until after they conduct discovery to serve them with legal papers and 2. they claim the need for Expedited Discovery due to their claim that ISP logs (and their accusers name/IP address records) are only kept for a limited period of time and could be lost to them forever.

This has been business as usual since the late 90s. Reports surfaced in the media of the RIAA targeting people with no computer knowledge. In 2003, the RIAA famously served a 12-year-old with a lawsuit which they later settled out of court for $2,000. In 2005, the RIAA sued 42-year-old Patricia Santangelo who claimed she has never downloaded music. She refused to settle with the RIAA and took her case to newspapers and national television. Throngs of supporters on the Internet raised money for her defense. The case was ultimately dropped but less than a month later in January 2007 the RIAA won a default judgment against Ms. Santangelo’s daughter Michelle. The court ordered that she pay $30,750 ($750 for each of the 41 songs she was accused of illegally downloading) because she failed to respond to the RIAA’s claims. In July, papers filed by the RIAA’s lawyers revealed that a judge vacated the default judgment against Michelle Santagelo.

Increasingly, the RIAA is running into trouble trying to procure information through ex parte motions. In June 2007 Magistrate Judge Lorenzo F. Garcia denied the RIAA’s ex parte motion to compel the University of New Mexico to reveal the identities of students listed in Capitol v. Does 1-16. The judge wrote in his decision,

Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian “suspension of disbelief” to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member’s Internet files can be equally harmful.

As the Plaintiffs do not presently know the identity of the Defendants, there is no reasonable way to ensure that those prospective Defendants are given notice or even an opportunity to respond in opposition to the request for disclosure. Rather, Plaintiffs seek to obtain information directly from the University of New Mexico. Plaintiffs propose that the University will be able to notify subscribers that a subpoena was served. However, the Court needs to ensure that subscribers actually receive notification and are given a reasonable opportunity to intervene in order to stop the disclosure of sensitive information.

A month later, in July 2007, in a 5-page decision Judge Walter D. Kelley, Jr. of the Eastern District of Virginia in Newport News, Virginia denied the RIAA’s ex parte motion for an order granting discovery of the identities of students at the College of William and Mary.

Earlier this month the University of Oregon filed, with the support of the state Attorney General, a motion to quash the RIAA’s subpoena for information on student identities. The AG’s motion argues that “Plaintiffs’ subpoena is unduly burdensome and overbroad. It seeks information that the University does not readily possess. In order to attempt to comply with the subpoena, the University would be forced to undertake an investigation to create discovery for Plaintiffs — an obligation not imposed by Rule 45. As the University is unable to identify the alleged infringers with any accuracy, it cannot comply with its federal obligation to notify students potentially affected by the subpoena.” The motion is currently pending, however the notable thing about this instance is that it’s the first time a state Attorney General has weighed in on the tactics the RIAA uses to go after students at State colleges and universities.

However intriguing and, one might argue, common sense these ruling are the RIAA has been able to get legislation on the table that could render the need for ex parte motions moot.

It’s no secret that the entertainment industry contributes disproportionately to the Democratic Party. The Consumerist even listed the contact information for 50 politicians both Republican and Democrat who took money from the RIAA during the last election cycle. So it’s not exactly a surprise that Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX) have re-introduced the “PIRATE Act” (pdf) to Congress as the “Intellectual Property Enforecement Act”. It allows the Justice Department to bring lawsuits against individual file swappers and gives them authority to bring civil cases against infringers. According to Ars Technica the bill “also provides more funding to counter intellectual-property crimes involving both computers and Internet, along with more FBI agents to investigate such crimes.”

On November 2, 2007 the “College Opportunity and Affordability Act of 2007″ was introduced to the US House of Representatives. Language in the bill, according to news.com say that “universities must agree to provide not just deterrents but also “alternatives” to peer-to-peer piracy, such as paying monthly subscription fees to the music industry for their students, on penalty of losing all financial aid for their students.”

A letter sent to congress on November 7th and signed by the chancellor of the University of Maryland system, the president of Stanford University, the general counsel of Yale University, and the president of Penn State strikes a note of alarm.

“Such an extraordinarily inappropriate and punitive outcome would result in all students on that campus losing their federal financial aid–including Pell grants and student loans that are essential to their ability to attend college, advance their education, and acquire the skills necessary to compete in the 21st-century economy.”

The legal and moral debates continues to rage over unauthorized copyrighted distribution but these tactics have made record labels the most hated business in America according to a recent Consumerist poll. It has forced forward-thinking artists to investigate new ways of distributing music to their audience. Radiohead and Trent Reznor are the current faces of this movement. However, even the major labels are trying out new retail methods. According to CNN Money, Atlantic Records released the new Matchbox Twenty offering “Exile on Mainstream” in 11 different versions including a black rubber bracelet that doubles as a USB device and includes 17 songs, plus video interviews and a digital booklet with album art for about $35.

Ultimately, Trent Reznor best sums up the life and times of a musician in 2007.

I think it’s just an awkward time right now to be a musician. The reality is that people think it’s okay to steal music. There’s a whole generation of people, that’s all they’ve known. I used to buy vinyl. Today, if you do put out a record on a label, traditionally, most people are going to hear it via a leak that happens two weeks — if not two months — before it comes out. There’s no real way around that. I’m truly saddened because I think music has been devalued, so that it’s just a file on your computer, and it’s usually free. But we can’t change that. What we can do is try to offer people the best experience that we can provide them. Will it work? I don’t know. But I think it’s a great way to get music out to people who are interested. At the end of the day, all I care about is the integrity of the music, and that the feeling of those who experience it is as untainted as possible.