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Court Rejects Music Industry Subpoenas

By David McGuire
washingtonpost.com Staff Writer
Friday, December 19, 2003; 3:40 PM

The recording industry's effort to curtail online piracy was dealt a significant blow today when a federal appeals court ruled that Internet service providers cannot be compelled to disclose the identities of customers suspected of illegally sharing copyrighted songs.

The ruling, delivered by a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit, overturns a lower court judge's January decision that the Recording Industry Association of America (RIAA) could use a controversial copyright law to force Verizon's Internet services unit to reveal the identities of suspected song swappers.

_____On The Web_____
Ruling: U.S. Court of Appeals for the District of Columbia Decision on RIAA vs. Verizon (Dec 19, 2003)
_____Online Resources_____
Timeline: The RIAA's Legal Campaign (washingtonpost.com, Dec 19, 2003)
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Verizon, Record Companies Duel Over 'Net Piracy (washingtonpost.com, Sep 16, 2003)
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RIAA Ties Child Porn to File-Sharing Sites (washingtonpost.com, Sep 10, 2003)
RIAA's Lawsuits Meet Surprised Targets (The Washington Post, Sep 10, 2003)
Music Industry Sues Online Song Swappers (The Washington Post, Sep 9, 2003)
New RIAA Chief Seeks a Hit Single (washingtonpost.com, Sep 5, 2003)

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The judges conceded that Internet piracy is a crime and that it poses a major threat to the entertainment and software industries. However, the decision amounts to a direct strike against the RIAA's strategy of relying on a controversial copyright law to identify persons likely to have engaged in the illegal sharing of songs over the Internet.

"I think the bottom line is this is a significant victory for Internet users and will go a long way toward protecting their privacy," said David Sobel, general counsel for the Electronic Privacy Information Center, a privacy rights group based in Washington, D.C. "It will prevent the recording industry and other content owners or copyright holders from conducting fishing expeditions in the records of Internet service providers."

Peter Swire, a law professor at the Ohio State University and former Clinton Administration privacy advisor, said the subpoenas posed a grave threat to ISPs that have come to rely on customer trust.

"The recording industry was pushing the statute far beyond what it said," said Swire, who worked with Verizon in the early stages of the RIAA case.

Subpoenas and lawsuits have proved an effective weapon in the recording industry's war against music piracy. The RIAA used the lower court's January decision as its basis for launching a legal blitzkrieg against Internet users, suing 382 of them and filing subpoenas for thousands of online identities. The association said it also plans to file lawsuits against nearly 400 other suspected traders. It has reached 220 settlements so far.

In the decision issued today, the appeals court said that the RIAA's campaign oversteps the bounds of the Digital Millennium Copyright Act (DMCA), which Congress approved in 1998.

The court said that Verizon cannot be held responsible for material that passes through its Internet network. The RIAA's argument that ISPs could be subpoenaed because of the material its customers transmit on the Internet "borders on the silly," Judge Douglas H. Ginsburg wrote.

"[The] DMCA betrays no awareness whatsoever that Internet users might be able to directly exchange files containing copyrighted works," Ginsburg wrote. "It is not the province of the courts ... to rewrite the DMCA in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry."

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