By John Borland
Thursday, September 25 2003 09:28 AM
URL: http://www.zdnetasia.com/news/personaltech/0,,39152479,00.htm

The Recording Industry Association of America has withdrawn a file-swapping lawsuit after a possible case of mistaken identity.

The trade association confirmed Wednesday that it had withdrawn its suit against Boston-area senior citizen Sarah Ward, who claimed that she could not possibly have been involved in the file-swapping incident attributed to her. Among other objections, Ward is a Macintosh computer user, and there is no Apple version of the Kazaa file-trading software she is supposed to have used, according to attorneys who have spoken to the woman.

An RIAA spokeswoman said the group did not believe it had made a mistake in identifying the ISP account used by Ward, but that it was dismissing the case for now.

"We are being as careful as we can be and are giving her the benefit of the doubt," spokeswoman Amy Weiss said. "We think if someone has a credible argument, we will withdraw and ask questions later."

Ward's case highlights concerns vociferously expressed by RIAA critics, who have long predicted that the trade association would ultimately catch innocent computer users in its file-trading dragnet. Lawyers say the incident is not likely to carry immediate damage to the group's legal efforts, but it does raise questions about the fallibility of the recording industry's investigative procedures.

The RIAA filed the lawsuit against Ward two weeks ago as part of the first wave of 261 copyright infringement suits leveled against computer users deemed by the RIAA to be "egregious" file swappers. Other stories varying widely from that of the stereotypical file swapper came out quickly, including 12-year-old New York public housing resident Brianna Lahara and a 71-year-old Texan grandfather.

The RIAA settled its case against Lahara for US$2,000 just a day after filing the suit. Attorneys involved in the issue say other lawsuit targets have also been settled, but the RIAA declined to release information on these cases.

According to attorneys who have spoken to Ward, she is a sculptor and a former early childhood educator who lives at home with her husband. Her children and grandchildren do not live with her and would not have used her account to trade files on a PC, they say.

Nor is Ward likely to have downloaded many of the files allegedly on her computer, such as songs by rapper Busta Rhymes, said Electronic Frontier Foundation attorney Cindy Cohn, who helped Ward with her case.

"One phone call to Sarah Ward would have let anyone figure out they had the wrong person," Cohn said. "This really brings home the recklessness of the RIAA's crusade."

Cohn speculated that some mistake might have been made by Comcast or the RIAA in identifying the Internet Protocol address associated with a file swapper's account, leading to the mistaken identification of Ward. Comcast, like most other cable Internet service providers, provides "dynamic" or temporary IP addresses to subscribers that change as they log in and disconnect.

RIAA's Weiss said the organization was confident about the information provided by Comcast and in its own data. In a letter sent to Ward's attorney late last week, an attorney for the labels said the case would be dismissed. However, the group will continue to investigate the case, and could refile the claim against Ward at a later date, the letter said.

Neither Weiss nor the letter said what additional evidence the group would seek in its additional scrutiny of Ward's case.

Outside attorneys said the incident would likely have little bearing on other file-swapping cases, but that it would be a black eye for the RIAA in political circles and among the public if it did indeed turn out to be a case of mistaken identity.

"Every case will be judged on its own merits," said Morrison & Foerster attorney Jonathan Band. "A defendant could try to challenge the methodology used by the RIAA and could say, 'Look at the mistakes that were made (in Ward's case),' but he would still have to prove that the same kinds of mistakes were made."