I appreciate Michael Roberto’s letter to the editor (‘U’ must better protect students from RIAA, 10/29/2007) supporting the University’s new Be Aware You’re Uploading service, which commenced yesterday. Roberto also raised concerns about a different aspect of the University’s practices. He believes that unlike the University of Wisconsin at Madison, the University of Michigan is helping the Recording Industry Association of America. If you read on, I think you will see the merit in the University of Michigan’s decision.

The RIAA is suing people. Here’s how it works: The RIAA observes the Internet for peer-to-peer file-sharing and then – with the hope of either suing or settling – it seeks to identify people who it alleges are engaging in illegal file sharing. Initially, the RIAA does not know the identities of the people it accuses (only their IP addresses) so it works through an Internet Service Provider to get this information. Like most colleges, the University is an ISP, which is why the RIAA uses us to obtain information.

First, the RIAA typically sends a preservation notice, which tells the ISP to preserve the relevant data, which we then must retain. Previously, the RIAA would then (not knowing the defendants’ identities) file a “John Doe” lawsuit and issue a Rule 45 subpoena to the ISP, compelling us to turn over the names and contact information of the accused.

Recently, the RIAA has begun inserting another step (the one that concerns Roberto) between sending the preservation notice and filing suit. The RIAA now asks us to voluntarily forward to our students, which we do immediately, a settlement offer in the hope, it seems, of securing settlement before litigation begins. If a settlement is not reached within a month or so, the RIAA continues with its lawsuit process.

You may ask yourself, “Why would the University want to help the RIAA by forwarding the settlement offer to students when it is not required to do so?” While this is a reasonable question, it was not the question the University asked. Instead we asked: “Given these circumstances, does it serve our students’ interests to keep knowledge of the settlement offers to ourselves? Does it help our students to decide for them that they will be named as defendants by denying them the option to settle beforehand?”

We chose the path that empowers our students to be a part of the process, to prepare for a lawsuit and to make their own decisions. This probably helps the RIAA at some level, but we believe that despite this ancillary condition, the primary obligation is to our University community.

We were mindful of several other facts, as well. First, in our experience the RIAA had never failed to pursue the quarry it had identified in its preservation notices. Second, we had observed that when the RIAA expended more resources to pursue a user, settlement offers were higher. For instance, when we rejected invalid subpoenas, the students who were the subjects of those invalid subpoenas reported being asked to settle for more than the students who had been the subject of a valid subpoena the first time. Apparently the additional costs associated with pursuing the students were added to the settlement offer.

We also observed that students who reached out to settle with the RIAA (prior to the pre-litigation settlement offer plan) before the RIAA issued a subpoena were given lower settlement offers than students who settled post-subpoena. Now that the pre-litigation settlement offer plan is in place, we have noticed a similar phenomenon. Not all students decide to settle pre-subpoena. Those who settled pre-subpoena have paid $1,000 less than those who settled post-subpoena. Moreover, students who use our Student Legal Services pre-subpoena have been able to settle with RIAA anonymously. According to The Badger Herald, some students at Wisconsin wished they had had a similar opportunity to decide whether to settle beforehand.

We do not condone unlawful file sharing or the RIAA’s tactics. But we inform students whenever we have information because, as with BAYU, our goal is to educate our students so they can understand their choices, risks and responsibilities.

Jack Bernard is an assistant general counsel in the University’s Office of the Vice President and General Counsel.

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