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Recording Firms Win Copyright Ruling
http://www.washingtonpost.com/ac2/wp-dyn/A24577-2003Jan21?language=printer

   Recording Firms Win Copyright Ruling
   Judge Orders Verizon to Identify Internet Customer Who Used
   Music-File-Sharing Service

   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
   music-file-sharing service.

   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
   said.

   "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
   appeal.

   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
   to do.

   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
   suspected infringers.

   "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.