Quote:Court Limits Efforts to Unmask Music Swappers (Page 1 of 2)

The recording industry must first ask a judge before forcing Internet companies to disclose the names of people who trade music online, a federal appeals court in Washington ruled yesterday.

The sharply worded ruling, which underscored the role of judges in protecting privacy and civil rights, is a major setback to the record companies in their efforts to stamp out the sharing of copyrighted songs through the Internet. It overturns a decision in a federal district court that allowed the music industry to force the disclosure of individuals simply by submitting subpoenas to a court clerk without winning a judge's approval.

Until yesterday's ruling, the industry could seek information on file traders without filing a lawsuit or even appearing before a judge, a streamlined procedure that opponents of the industry said did not protect Internet users' rights.

"It's a huge victory for all Internet users," said Sarah Deutsch, vice president and associate general counsel for Verizon Communications, which brought the suit against the Recording Industry Association of America to protect the identities of its Internet customers. "The court today has knocked down a very dangerous procedure that threatens Americans' traditional legal guarantees and violates their constitutional rights."

The appeals court did not directly raise those constitutional issues in its decision. The judges said they were "not unsympathetic" to the industry's troubles in limiting music piracy "or to the need for legal tools to protect those rights." But in a decision that focused narrowly on the nuts and bolts of copyright law, they said that the music industry had gone too far.

Cary Sherman, the president of the recording association, said that the case "is inconsistent with both the views of Congress and the findings of the district court." Mr. Sherman said that his organization would continue to sue those who violate copyrights. It "doesn't change the law, or our right to sue," he said. "It just changes the way we get the information."

Mr. Sherman said his member companies had not decided whether to appeal, or whether to press Congress to amend trademark law.

The recording industry has been struggling to counter an army of Internet downloaders — tens of millions strong — who, beginning with the advent of Napster in the late 1990's, have swapped songs on peer-to-peer networks like Kazaa without regard to the intellectual property rights of artists, composers and the companies that record the music.

In September, the industry began suing large-scale file swappers. Although the swappers' libraries of music were out in the open, visible to industry experts who traced the activity, their identities were not. Most file-sharing networks operate anonymously, with only an Internet ID number managed by the service provider to link them to the activity.

The recording industry used a controversial provision of the Digital Millennium Copyright Act of 1998 to demand that companies that provide Internet connections reveal the names of those customers.

The industry ran into a public relations problem when some of its early lawsuits were issued to innocent people — including a Boston-area woman who did not even own a computer that could run the file-trading program she was accused of using — and sympathetic defendants like a 12-year-old girl. The publicity surrounding the suits, however, got the message to file traders that there could be consequences to their illicit listening pleasure.

The opinion in the Verizon case was written by Chief Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia and represented the view of the three judges who heard the case.

In his ruling, Judge Ginsburg wrote that Verizon, as an Internet service provider, was "acting merely as a conduit" for the music files and did not store the data on its own computer network. The industry's argument, he added, that subpoena power could be applied to an Internet service provider when songs were only momentarily passing through its data pipes, "borders upon the silly."

Quote:(Page 2 of 2)

Jonathan Zittrain, co-director of the Berkman Center for Internet and Society at Harvard Law School, said that the problem for the industry was that "the Internet moves at Internet speed," while law moves at a more deliberate pace. "I don't think anybody had peer-to-peer in mind when the statute was written."

Under the decision, notices sent to an Internet service provider that does store its customers' data, as in a Web site, could still be valid.

Advertisement

The decision will probably have little practical effect on the hundreds of people already sued by the industry. But it changes the music battlefield in many ways.

"For people whose names have been requested but not turned over, this is a reprieve," said Stewart Baker, a lawyer who represents Internet service providers. People who have already settled lawsuits by the industry could conceivably argue that their identities were obtained illegally and demand their money back, but the industry could simply sue all over again, he said.

Mr. Sherman, the recording industry executive, argued that the decision would end up hurting consumers because they would no longer be notified before a lawsuit was filed and they had been given a chance to settle cases.

The procedure that the industry now may have to use is a more conventional process for unmasking anonymous people known as a "John Doe" case that involves filing a lawsuit against the unknown person and then asking a judge to compel Internet service providers to reveal the identity. That process will be more cumbersome and expensive for the music industry and, potentially, for consumers as well. But Ms. Deutsch of Verizon said it "will be much more protective of users' rights."

The recording industry, in the meantime, has begun to pursue other tactics in its fight against file traders. On Tuesday the organization began quietly sending out letters to Internet service providers to propose a new "voluntary notice program" asking that file swappers be notified "without providing us with any identifying information."

The industry appears to be moving away from the expensive and image-tarnishing strategy of suing customers, said Gigi B. Sohn, the president of Public Knowledge, a policy group in Washington. While the threat of lawsuits is unlikely to go away, she said, "I can't imagine that this is going to be the core of their strategy" in the long term. "They know they've got to get people buying music online," and the rise of legitimate services like iTunes from Apple and Rhapsody from RealNetworks suggests that the shift is beginning to occur, she said.

Mr. Sherman said, however, that the goal of the new initiative was simply "expanding the reach" of the industry's enforcement and education efforts, and "not to diminish one over the other."

Representatives of several organizations that have taken a stand against the recording industry stressed that the issue in the case was not whether copyright infringement should be legal.

"People who violate copyright can be punished," said Chris Hanson, senior staff counsel for the American Civil Liberties Union, which has fought the industry in its attempt to force Internet service providers, including a number of colleges, to give up the names of file traders with a simple subpoena. "The record industry had argued that the courts were required to be a mindless tool of the industry" under the Digital Millennium Copyright Act, he said.

The process that the industry had pursued was far too loose, said Peter Swire, a former privacy official in the Clinton administration who served as an expert witness for Verizon in district court.

Like Wednesday's federal court decision in the case of an accused terrorist, Jose Padilla, he said, the music decision asserts the role of the courts in protecting citizens' rights. "Due process," Mr. Swire said, "is alive and well in the American court system."

Quote:U.S. court nixes Net music subpoenas

Friday, December 19, 2003 Posted: 11:05 AM EST (1605 GMT)

WASHINGTON (Reuters) -- In a surprise setback for the recording industry, a U.S. appeals court said Friday its methods for tracking down those who copy its music over the Internet are not authorized by law.

The Recording Industry Association of America, a trade group, has sought to force Verizon Communications and other Internet service providers to reveal the names of customers it suspects may be copying music without permission.

The recording industry says the widespread copying of music over the Internet is partially to blame for falling CD sales.

Verizon has argued that existing copyright law does not give the recording industry such authority and its customers' privacy was being violated.

A lower court earlier this year upheld the recording industry's tactics, which have served as the basis for hundreds of lawsuits filed against individual Internet users.

But in a strongly worded ruling, the appeals court sided with Verizon, saying a 1998 copyright law does not give copyright holders the ability to subpoena customer names from Internet providers without filing a formal lawsuit.

"In sum, we agree with Verizon that (the law) does not by its terms authorize the subpoenas issued here," Chief Judge Douglas Ginsburg wrote.

Neither Verizon nor the RIAA was immediately available for comment.