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Chicago Sun-Times
LOYOLA HITS SOUR NOTE IN NAMING STUDENTS IN NET MUSIC CASE
July 28, 2003
By Anthony D'Amato
Loyola University Chicago has turned over the names of two students linked to an Internet address listed in a subpoena that was served on the university by the music recording industry. The reaction of the student body was that their privacy has been invaded.
I want to make it clear at the outset that I believe that music swapping on the Internet is theft. A composer has a property right in the music she has created. Infringing that copyright is just as unlawful as breaking into her home and stealing her valuables.
I further believe that arresting someone for copyright infringement is no more a violation of his right to privacy than putting a burglar in jail is a violation of his freedom to travel.
However, the rights to arrest and imprison, as well as the right to engage in criminal investigation, belong to duly trained and licensed law enforcement officials. A school or university should consider carefully whether it wants to be co-opted into the law enforcement business. Loyola might have mounted a strong legal challenge to the validity of the subpoena in the court that issued it, as well as, if necessary, the appellate courts.
I am sure that the Loyola University officials, showing none of the spunk of their founder Ignatius Loyola, were apparently quite anxious to cooperate with law enforcement. They may have simply believed that the named students would have their day in court and could raise all their legitimate defenses at that time. But I wonder about their loyalties when they boasted to reporters that their computer system is designed to alert administrators to unusual activity in a student's computer usage. Moreover, Loyola has cut off the two students' access to the Internet and has summoned them to a disciplinary hearing.
The students could be sued for damages as well as being prosecuted as felons, under the Digital Millennium Copyright Act of 1998. Suppose there is a criminal trial. Has Loyola's decision to comply with the subpoena prejudiced the student defendants?
The prosecutor will begin by describing to the jury how the defendants were identified. She will say that their own university turned in their names. Thus the seed will be planted in the jurors' minds that even the defendants' own school was not willing to go to bat for them.
The prosecutor will call a Loyola administrator to the stand as a witness concerning the provision and monitoring of students' use of the university computing system for access to the Internet as well as for information regarding class assignments, syllabi, rescheduling of classes, university lecture series, and grades. The administrator will tell the jury that these days a computer is an indispensable tool for a college student.
He will also say that he is alerted by the computer system when there is unusual Internet activity in a student's account. What kind of activity? Well, it can range from doing an extensive Google search for information relating to a term paper, to things like music swapping.
So far, the defense attorney has nothing to object to in this line of questioning. But the zinger is coming next.
Before the trial, the prosecutor interviewed the Loyola administrator. She went over the kinds of questions she would ask, and the kinds of responses he might make. She might say, ''What if I asked you what kinds of actions you might take in the case of students using the computer for improper activities?'' The administrator might reply with something like: ''Well, in the case of the two students who are going on trial, we immediately terminated their access to the Internet.'' The prosecutor asks him to remember his answer when he is on the witness stand.
Cut back now to the trial. The administrator blurts out, ''Well, in the case of the defendants here, we immediately terminated their computer access.''
''Object!'' yells the defense attorney. The judge says, ''Sustained; the jury will disregard what the witness has just said.''
But the damage is done, and the prosecutor smiles inwardly.
The Digital Millennium Copyright Act, for all its friendliness to copyright owners, specifically states that it does not impair any due process or freedom-of-speech rights that citizens now enjoy. Yet in the criminal trial I've just been imagining, the students' right to a presumption of innocence has effectively been impaired. It will be especially hard for them to contend that they had no intent to infringe anyone's copyright when their own university terminated their access to the Internet.
Loyola is apparently the first university in the country to cave in to a subpoena requesting the identification of students for purposes of copyright enforcement. It is an unwelcome precedent.
Anthony D'Amato is a professor of law at Northwestern University.
