Judge greenlights RIAA to dig into man's past, employer

By Eric Bangeman

A federal judge granted the record labels a big victory in a file-sharing fishing expedition, approving the RIAA's request to subpoena the defendant's employer, wife, and brother. In a ruling issued late last month, Judge P. Kevin Castel also ordered defendant Yuri Shutovsky to provide the names and addresses of every person who had used his PC in the three years prior to the lawsuit being filed.

Shutovsky was sued by the record labels after the RIAA's investigative arm, Media Sentry, discovered a computer sharing music on KaZaA using an IP address Verizon said was assigned to Shutovsky at the time. Shutovsky has denied engaging in copyright infringement, saying that he was in Russia at the time the alleged infringement took place—and has offered to provide copies of his passport to prove it.

According to a list of discovery disputes (PDF) dug up by the Recording Industry vs. The People, there have been a number of points of contention between the two parties. One of the main issues is whether the hard drive turned over to the RIAA's computer forensics experts is the one that was actually used in the PC Media Sentry flagged for file sharing. The plaintiffs said that the drive lacks any of the Verizon software used to connect to the telecom's DSL service, as well as a list of usernames and passwords from Deutsche Bank, Shutovsky's employer, some of which were used as late as January 2006.

Shutovsky said that he bought the PC from Deutsche Bank in 2004 and that it has remained in his apartment ever since. In an attempt to reconcile the positions of the plaintiffs and defendant, Judge Castel approved a subpoena to Deutsche Bank, requiring them to turn over all information regarding PCs the company sold to or used by Shutovsky, any evidence of P2P usage on those computers, and records of his business travel during 2005. In addition, Shutovsky must turn over all hard drives in his possession so that the RIAA's investigators can check them for evidence of infringement, too.

In addition, Shutovsky is directed to provide the names and addresses of all people who have used his PC in the three years prior to his being sued. According to his response to the RIAA's requests, those who may have used the computer include his wife, an unspecified list of "short-term house guests," and eight other people who live in Russia, Ukraine, or the UK. The RIAA says that it would like to contact the Shutovsky's houseguests to see if it would be "reasonable" to take depositions.

The machinations that the RIAA and defendants are going through to determine who, exactly, was using the computer with the IP address 162.83.177.207 at 2:59 PM on August 17, 2005, demonstrate the weakness inherent in the RIAA's methodology. Assuming that Verizon's log files are accurate and that Shutovsky's assertion that any one of a dozen people may have been used the PC in question over the past three years, it's going to be almost impossible to determine who was logged in to KaZaA at that fateful moment.

The RIAA's position is that, regardless of who was using the PC at the time, Yuri Shutovsky is responsible for whatever copyright infringement may have occurred by virtue of his paying for broadband from Verizon. The labels call that secondary infringement, and it's a position that at least one judge has said doesn't hold water.

Judge Castel has extended discovery in the case to run through November 30, 2007. There will be a pre-motion conference letter regarding Shutovsky's motion for summary judgment due in mid-December, with the next court proceeding delayed into January 2008—if a settlement cannot be reached by that time. To that end, counsel for both parties will have to meet face to face by September 24.