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Commentary: What's Real and Make-Believe with the RIAA Subpoenas?
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The "Clean Slate" Amnesty Program

On Monday, September 8, 2003, the RIAA announced that it has filed lawsuits against 261 people. It also announced its "Clean Slate" Amnesty program on MusicUnited.org.

To participate, sharers would fill out the Clean Slate Affidavit stating that all infringing files have been deleted from their computer and all CDs burned from those files have been destroyed. In addition, confessors would pledge to never do it again with the understanding that the penalties would be even more severe if they were caught, because they could then be charged with "willful infringement."

The affidavits must be notarized, and there must be a separate affidavit for everyone in your household. Sharers under 18 must have the affidavit signed by their parent or guardian. Applicants are also expected to "not allow others to illegally download copyrighted sound recordings to your computer(s)." Only individuals are eligible for the Clean Slate program; businesses, groups, organizations or "entities," or individuals who traded for payment or commercial purposes may not participate.

In the program description, in exchange for filling out and sending in an affidavit, the RIAA will agree "not to support or assist in copyright infringement suits based on past conduct" for users who meet certain conditions. One of these conditions is the RIAA "has not begun to investigate you by requesting from an Internet Service Provider (ISP), by subpoena or otherwise, identifying information about you." If users whose information has already been subpoenaed are not eligible for amnesty, this presents a problem for any users wishing to receive amnesty. Under the DMCA, neither the RIAA or the ISP who has been subpoenaed is required to notify the user upon being served, they could unknowingly admit to conduct the RIAA might already be in the process of suing them for.

A key issue remains that the RIAA does not even have the right to grant full amnesty in the first place. The songwriters and music publishers that aren't represented by the RIAA (such as Metallica) could opt to sue infringers on their own. "The RIAA doesn't have the right to give full amnesty for file sharing. True, they represent 90% of all sound recording copyright owners. But there are still 10 percent out there who could sue you even if you take amnesty program," said Jason Schultz, a staff attorney at the Electronic Frontier Foundation. "It's still unclear if amnesty saves you from being sued by the songwriters/music publishers."

Clean Slate's Privacy Policy raises other questions. It states that "information provided on the Clean Slate Program Affidavit will be used solely in connection with conducting and enforcing the Clean Slate Program" and not used for "marketing, promotional, or public relations purposes" and will "not be made public or given to third parties, including individual copyright owners," but then there's a big exception: "except if necessary to enforce a participant's violation of the pledges set forth in the Affidavit or otherwise required by law." This language, translated, means that the affidavit records would in fact be made available to other infringement lawsuits.

"We're calling it a 'Shamnesty.' It's more like a Trojan Horse than a 'clean slate.' It fools you into thinking you're safe, when the reality is that, if anything, you're more at risk for participating," explains Jason Schultz, Staff Attorney for the EFF. "It's not 'Full Amnesty' at all. The agreement doesn't give file sharers any real peace of mind, because it only covers being sued by the RIAA itself -- not any of its member companies. This means that, under the Clean Slate agreement, recording companies, copyright owners, and music publishers can all still sue you. It only means that the RIAA won't 'assist' them in the lawsuit. They are basically getting you to admit to the conduct so your own statement can be used against you later."


Lisa Rein is a co-founder of Creative Commons, a video blogger at On Lisa Rein's Radar, and a singer-songwriter-musican at lisarein.com.

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