Playa del Rey, Calif., resident Ross Plank has enlisted the help of the Electronic Frontier Foundation, an online civil liberties group that has been a vocal critic of the recording industry's lawsuits. The Recording Industry Association of America sued Plank in June as part of ait filed against individuals who allegedly offered large amounts of copyrighted music for download through file-swapping networks such as Kazaa.
Plank said he has several kinds of proof. Among other things, he said the Internet address the RIAA linked to his file swapping doesn't match the routing information that's contained in numerous e-mails he sent during the period the group said he swapped. He also said he wouldn't likely listen to songs the labels said he shared, which include a large number of Spanish-language titles.
"If they had done some further checking before they sued, it seems like they might have been able to catch this mistake," Plank said. "It's pretty obvious that this has to be someone else."
Plank's case is the second time a target of the RIAA lawsuits is claiming that the trade association has sued the wrong person. If both claims hold up, they could give some room for other defendants to challenge the accuracy of the RIAA's evidence gathering in court.
Previously, Boston-area resident Sarah Ward said she couldn't possibly have been using Kazaa, as the RIAA charged, because she was using an Apple Computer, and Kazaa does not have a version distributed for the Macintosh. The RIAA, but its attorneys said they would continue to investigate.
To date, the RIAA has settled more than 50 cases it filed in its first round of suits. In Plank's case, RIAA spokeswoman Amanda Collins said the group was still looking into the details.
"We're confident in our evidence collection process, but to the extent someone claims that we've erred, we will investigate the matter," Collins said.
Ward and Plank each used cable modem provider Comcast as their Internet service provider. Comcast spokeswoman Sarah Eder said she could not discuss individual subscribers' details, citing privacy concerns but said the company only gave out customer information when legally required to do so and that when it did, Comcast took every precaution to ensure its accuracy.
"We will comply with a subpoena in situations in which we are legally bound, and when the request meets specific legal criteria," Eder said. "Comcast will continue to evaluate its position and obligations with regard to future requests."
In the month since the RIAA filed the suits, Net monitoring organizations and statistics groups have said usage of file-sharing services has. Late in September, Nielsen/NetRatings said Kazaa traffic had fallen by 41 percent since the last week of June, when the group first announced that it would sue individuals.
Still, Kazaa remained the most popular file-trading application in the U.S. market, with more than 3.9 million weekly visitors, the Nielsen/NetRatings study said. A separate study network management company Sandvine released Tuesday, however, said other file-swapping applications, such as eDonkey, had emerged to be more popular than Kazaa in several European markets.
An attorney from the EFF said Plank is the only active case of apparent mistaken identity the EFF is working with, from the latest round of RIAA lawsuits but that it expect others to emerge, as the record group continues to seek damages against other computer users. RIAA executives have said they would continue filing suits against swappers in order to reinforce their message.
"It seems to be a process with lots of room for errors," EFF attorney Wendy Seltzer said.