Late last week, the RIAA was dealt another setback in its battle against copyright infringement on college campuses in the US. A federal judge denied the record labels' motion to conduct ex parte discovery to determine the identities of seven students at the College of William and Mary, making the task of identifying those targeted by the record labels much more time-consuming.

Ex parte discovery is the music industry's method of choice in its legal campaign against filesharing, as it allows the RIAA to file a John Doe lawsuit based only on an IP address. Despite the questions about the legality of the RIAA's requests, judges have typically been willing to issue subpoenas forcing ISPs to turn over the name and address of the subscribers in question without the accused having a chance to contest the subpoena. The RIAA subsequently files suit against the former John Doe should he or she decline to take advantage of its litigation settlement letters.

The decision by Judge Walter D. Kelley, Jr., marks the second time the RIAA has been prevented from using ex parte discovery to discover the identities of college students suspected of file sharing. Last month, a federal judge in New Mexico ruled that targeted students at the University of New Mexico should have a chance to respond to the John Doe lawsuits, writing that the RIAA's claims that the record labels would suffer "irreparable harm" if they were not allowed to take immediate discovery required a "Coleridgian 'suspension of belief.'"

Judge Kelley's opinion, available from Recording Industry vs. The People (PDF), essentially says that the RIAA is not entitled to immediate discovery because it is using the incorrect law as the basis for its request. In their motion, the record labels cite the Cable Communications Policy Act of 1984 as the authorization for its ex parte subpoenas. Judge Kelley says that the College of William and Mary is not a cable operator, and even if it were, "only 'a government entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order.' Because plaintiffs are not government entities, the CCPA does not authorize their ex parte subpoena."

In effect, the judge is saying "not only did you cite the wrong law as the basis of your request, but even if this law applied to colleges, you wouldn't be entitled to the information anyway." Judge Kelley also helpfully points out that the record labels should have used the DMCA instead.

"Plaintiffs' motion and accompanying brief neglect to mention that Congress provided a framework for subpoenas to identify internet infringers in the Digital Millennium Copyright Act 'DMCA'), specifically 17 U.S.C. § 512(h)," wrote the judge. "Section 512 of the DMCA establishes safe harbor provisions for four categories of internet service providers ('ISP') based on the function which the ISP performs with respect to the infringing material-'transmitting it per § 512(a), caching it per § 512(b), hosting it per § 512(c), or locating it per § 512(d).'"

In order for a subpoena to be issued under the DMCA, according to Judge Kelley, the record labels must first issue a DMCA takedown notice to the ISP: in this case, William and Mary. However, since the college did not host, cache, or transmit the music in question, there's no place for a takedown notice... and no room for a subpoena to be issued.

The end result is that the RIAA is barred from discovering the identities of the alleged filesharers at the College of William and Mary under either the CCPA-which it has used in most (if not all) filesharing cases-or the DMCA. Judge Kelley's ruling is not precedent-setting, but if other judges in cases involving universities follow his example, it will be impossible for the RIAA to make its customary end-run around the legal system and will give the college students accused of filesharing a chance to fight any subpoena in court-an option denied to the vast majority of the RIAA's targets.