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May 31, 2011

Boxing In Music?

The music industry, through the RIAA (the Recording Industry Association of America) has been at the forefront of e-discovery issues.

Music The primary target for the RIAA has, historically, been peer-to-peer networks such as Napster and LimeWire. A few weeks ago, the RIAA obtained a $105 million settlement from LimeWire for alleged copyright infringement by users.

Now, the RIAA is going after electronic data stored in the cloud. News reports suggest that the RIAA has filed subpoena to get information from The subpoenas apparently seek to determine is users are storing music on the service, and then allowing others to access and copy the music.

According to Rolling Stone, the information sought by the RIAA is limited to information about specific users who are suspected of copyright infringement. 

The actions of the RIAA could become more interesting — and perhaps push the EDD legal envelope — if/when the RIAA starts making broader requests for information from cloud storage providers.  As the popularity of these services grow, more people are using the services to store and share photos and documents. For example, my sister-in-law just set up a page for us to share photographs from a recent family vacation. The request to by the RIAA could be the start of a strategy to make broader requests from cloud providers for information stored by a large numbers of users in an effort to identify copyright infringements. 

One commenter noted:  “It's difficult to see how [the RIAA] could sue, who almost certainly has no real liability here, but it could go after the users — something we'd thought the RIAA had sworn off for the time being.”

This next move — from requesting information about alleged infringers to broad requests intended to help identify alleged infringers — raises issues not only under the civil rules of discovery, the Digital Millennium Copyright Act  and the Stored Communications Act, but also under the First Amendment right to free association. Almost certainly people will be less likely to use cloud services for legitimate purposes if they become aware that lawyers are able to search through all of the stored files.



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