Recording Firms Win Copyright Ruling
Recording Firms Win Copyright Ruling
Judge Orders Verizon to Identify Internet Customer Who Used
By Jonathan Krim
Washington Post Staff Writer
Wednesday, January 22, 2003; Page E01
An Internet service provider must turn over the identity of one of its
customers suspected of illegally trading music files, a federal judge
ruled yesterday, handing the recording industry a powerful new weapon
in its efforts to crack down on what it considers digital piracy.
In a closely watched test case of how much anonymity Internet users
can expect, U.S. District Judge John D. Bates ordered the online
division of Verizon Communications Inc. to give the Recording Industry
Association of America (RIAA) the name of a Verizon customer who had
downloaded as many as 600 songs a day using the popular Kazaa
If the decision survives a promised appeal, it means that people who
use such file-swapping programs could be targeted for legal action by
entertainment companies. Because file sharing is popular with
teenagers, their parents also could be in the cross hairs if they are
the official subscribers of online services that connect their homes
to the Internet.
The major labels have been waging fierce legal battles against
file-sharing services, successfully shutting down the pioneering
Napster Inc. and recently winning a ruling that the overseas-based
Kazaa service could be sued in the United States. But online file
sharing, which allows users to trade songs without paying for them,
has persisted, costing the industry an estimated $5 billion in lost
revenue last year worldwide.
The Kazaa software has been downloaded more than 100 million times.
Now the industry can zero in on individuals as well, legal experts
"This will be a big club in the hands of the entertainment industry,"
said Jonathan Band, a Washington lawyer who specializes in Internet
law. "They will definitely be able to reach a class of users that they
have not been able to reach until now."
Cary Sherman, president of the RIAA, hailed the decision.
"The illegal distribution of music on the Internet is a serious issue
for musicians, songwriters and other copyright owners," he said in a
statement. "Now that the court has ordered Verizon to live up to its
obligation under the law, we look forward to contacting the account
holder whose identity we were seeking so we can let them know that
what they are doing is illegal."
Sarah B. Deutsch, Verizon's associate general counsel, countered that
the judge improperly interpreted the law and that the company would
Internet service companies fear that if the decision stands, they will
be deluged by subpoenas from the music industry demanding the
identities of the tens of thousands of users, which will compromise
their privacy and have a "chilling effect" on consumers and the online
providers, she said.
Verizon also argued that the subpoena process is unfair to users
because it does not require judicial approval. Subpoenas can be issued
by the clerk of any federal court.
The case began last July, when the RIAA served Verizon with a subpoena
for the user's name under a provision of the 1998 Digital Millennium
Copyright Act (DMCA). The organization uses automated software to
scour the Internet and identify file swappers but can identify them
only by numeric Internet addresses on various networks. The RIAA also
asked Verizon to terminate the user's service, which Verizon refused
Verizon said it opposes digital piracy but argued that under the law
Internet service providers are required to provide such information
only if the offending material is stored on its network -- if, for
example, it provides Web hosting services -- and not if it is merely
the conduit for data transmission. Typically, the offending files
reside on users' computers, which they make publicly available over
the file-sharing networks.
But Bates ruled that the 1998 copyright act clearly specifies an
ability and process for copyright holders to demand the identities of
"Verizon's assertions to the contrary are refuted by the structure and
language of the DMCA," Bates wrote. "Verizon has provided no sound
reason why Congress would enable a copyright owner to obtain
identifying information from a service provider storing the infringing
material on its system, but would not enable a copyright owner to
obtain identifying information from a service provider transmitting
the material over its system."
That distinction is crucial to online providers. Providers often work
with law enforcement agencies to identify lawbreakers but have been
generally exempted from responsibility for the actions of their users
in non-criminal areas such as libel.
"We support the right of RIAA and other copyright owners to protect
their intellectually property," said David Baker, head of public
policy for online provider EarthLink. "But RIAA is misusing the DMCA
as a sword instead of a shield."
Some of the consumer groups that filed briefs in support of Verizon
argued that the DMCA is unconstitutional because it restricts users'
"fair use" rights to replay music and infringes on their privacy.