RIAA campus letters: On shaky legal ground?

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The last thing parents want with their child's college tuition bill is a hefty cash demand over music piracy. But as recent reports indicate, the most important institution in a student's young life is now being used as a lever by the RIAA to extort a settlement. This raises troubling legal issues.

It is no secret that colleges, with their easily accessible high-speed Internet connections and a population familiar with the latest content-delivery platforms, are havens for music piracy. As such, the RIAA certainly has the right, as well as the moral and legal obligation to its record label members, to police copyrights.

But the new weapon introduced into the war against music piracy -- sending letters to the administrations of schools informing them of specific infringers and asking that the letters be passed along to the students -- raises questions as to whether the RIAA should be allowed to leverage the inherent practical, if not legal, in loco parentis role played by such educational institutions. It also suggests that the RIAA has enacted a messy end-run around laws governing the subpoenaing of information from the universities themselves.

The murky legality of these letters, as well as the intrusion on the right of privacy, can be analyzed by looking both at the relationship between the universities and their students and the privacy concerns the RIAA policy implicates.

Determining the relationship
This first challenge is figuring out what type of relationship exists between the student of a university and its administration. What is the relationship qualified as? More importantly, is the administration in a position to pass along information in such a way that circumvents the subpoena process?

The relationship is a tricky subject. A student could have a patient-physician relationship with the university's health care office, an employment relationship with services on campus or a landlord-tenant relationship in the case of dormitory residents, as well as a host of others.

The university also is in a unique position in that it is responsible for grading students and acknowledging academic progress, as well as guiding students through the intellectual rigor of school.

This student-university trust relationship also is embodied in a code of conduct that universities expect and require students to follow. This relationship is being attacked by the RIAA's attempt to convert a letter from the RIAA into a letter from the university, thus making the harm against the RIAA more like an infraction of the school's code of conduct and scaring students into complying with the RIAA's demands.

The relationship matters because the RIAA's cause often is similar to that of a creditor against a debtor, with the RIAA acting as the party owed money and trying to collect on the debt allegedly owed by the student. There are many rules governing this debtor/creditor relationship, as codified in the Fair Debt Collection Practices Act (FDCPA), which amended the Consumer Credit Protection Act in 1996. See 15 U.S.C.A. §1692(c) and 15 U.S.C.A. §1692(f).

Under the FDCPA, a creditor is limited to where and how he or she may contact a consumer who owes money. For instance, a debtor cannot contact a person at work or during inconvenient hours.

New York, among other municipal and state jurisdictions, has a similar statute in place to deal with harassment from creditors. See N.Y. Gen Bus §601. New York City has its own powerful anti-harassment code as well. See Rules of the City of New York, 6 RCNY §5-77. A creditor may contact your place of employment only to locate you, not to communicate through the employer. This provision, also in the FDCPA, applies to friends, family members and neighbors. Discussing a student's putative debt with a third party, without prior consent from the debtor, is not allowed, save a few exceptions.

On the whole, these laws aim to protect the consumer from harassing creditors doing just what the RIAA has attempted: advising a third-party university that a debt allegedly is owed and passing on the responsibility that settlement letters be delivered to students. The RIAA letters potentially are embarrassing to the students, which decidedly is harassment. See Kleczy v. First Federal Credit Control, Inc.,486 N.E.2d 204 (1984). This is especially true because the RIAA letters suggest that a crime has been committed.

Privacy rights and college
A student's privacy is closely intertwined with the relationship he or she has with the university. Does the university have the right to accept letters on the student's behalf and hand them off at the RIAA's bidding? Should the student be subjected to the whim of anyone seeking to find him or her by dropping off a letter at the university's doorstep? When students enroll in college, are they in fact opening themselves up to litigation because the college can funnel information straight from an aggressive plaintiff?

The RIAA tactic raises the question of how much information about a student should be available to the outside world without the formal exercise of the subpoena power and its attendant procedural protections. It is tough to argue that every facet of a student's college life should be available to any outside party.

The RIAA has the ability to subpoena information and find the student through already acceptable means. In order to subpoena information on students, the RIAA has to do the additional legwork and pay the extra expense to send subpoenas to the university, which in turn must release the information. By bypassing this system, the RIAA saves not only money and time but a possible fight with how much information it is allowed to receive.

By passing off the responsibility of delivering the settlement letters to someone on the "inside," the RIAA effectively sidesteps the formal information request system in place and breaks the privacy shield.

If the RIAA succeeds in finding the weak point in the privacy wall, what's to stop advertisers, creditors and others from entering the student's personal space by asking the university to kindly deliver settlement offers?

Spirit of the law and policy
The final leg of the problem is policy concerns. By allowing the RIAA a special privilege in the sphere of access to college students, the university environment could turn from learning and enrichment to a potential litigation nightmare. Of course, college students should be legally responsible for their actions. But the subpoena system we have is in place for a reason. College itself and many of the institutions surrounding it strive to keep the environment free of these types of issues. Debts are deferred until graduation, campuses strive to create job opportunities from within, etc.

The college community creates an invisible wall, a separate peace. Disrupting the college environment with an administration that goes from confidant and facilitator to legal errand boy and litigation instigator creates a disincentive for college students to be there in the first place. The effective method of finding information, subpoenaing that information, and taking students to task individually exists and has been employed by the RIAA already. Handing the university a stack of letters is something new entirely.

These new tactics are being used because the piracy problem is growing. But the Shotgun Letter Approach seems to violate the spirit of debt collection and privacy. While this situation isn't a typical debtor/creditor relationship because there are only potential settlements and no actual debt involved, parallels do exist, and protection from this type of direct harassment is codified in law when dealing with debtors.

This article is meant to raise questions that need to be answered. We long ago decided that despite the legitimate interest in controlling improper conduct and collecting debts that are truly owed, we would put in place certain protective procedures. Those procedures are designed to prevent the leveraging of fear, embarrassment and potential retaliation into a device for the collection of a debt claimed but not adjudicated.

The inherent problem with the RIAA's new collection tactic is not merely that it may fall astray of those rules but rather that they feel wrong. Ask yourself whether you would like to defend the RIAA's position in front of a jury. I certainly wouldn't want to.

Summer associate Mathew Genzer McCurley assisted in researching and writing this article.

About the author: Donald David is a litigator and a member of Cozen O'Connor in New York. He has represented artists in litigation against major music companies and those who have infringed upon their works.
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