Anti-Piracy vs. Privacy

Two of the Internet's major policy debates intersected yesterday when a federal judge ruled that an Internet service provider must reveal the identity of a subscriber who allegedly traded music files illegally. The ruling throws the spotlight once again on the entertainment industry's all-out war against digital piracy, and it reminded everyone that new technologies bring new threats to personal privacy.

U.S. District Judge John Bates sided with the Recording Industry Association of America, which demanded that Verizon Communications identify a subscriber accused of swapping hundreds of songs online using the music-sharing site Kazaa.

The judge cited the 1998 Digital Millennium Copyright Act (link to PDF), which protects copyrighted music and movies, as the basis for his ruling. The act states that copyright holders can demand the identities of suspected copyright pirates. "The judge said that controversial law ... permits music companies to force Internet service providers to turn over the name of a suspected pirate upon subpoena from any U.S. District Court clerk's office, without a judge's order," The Associated Press reported. CNET's News.com's take on the ruling: "This case represents the entertainment industry's latest legal assault on peer-to-peer piracy. If its invocation of the DMCA is upheld on appeal, music industry investigators would have the power to identify hundreds or thousands of music pirates at a time without going to court first."
• The Associated Press (via The Australian IT): ISPs Drafted In DMCA Piracy Fight
• CNET's News.com: RIAA wins battle to ID Kazaa user
• Judge Bates' ruling (PDF from FindLaw)

The RIAA issued this 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." Verizon had argued that RIAA's quest for a subpoena in the case did not cover material stored on Verizon's network, such as a subscriber name, but only the material transmitted on a network. The judge didn't agree. Verizon said it will appeal the ruling, which it said "opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts. This case will have a chilling effect on private communications, such as e-mail, surfing the Internet or the sending of files between private parties."

The San Francisco-based Electronic Frontier Foundation had sided with Verizon and scoffed at the ruling. "The constitutional protection of Internet users is being compromised on the say-so of record labels, without any court review whatsoever," Fred von Lohmann, a copyright attorney for the group told The San Jose Mercury News "There's no need for them to go into court and have to make a showing that their case is legitimate. And that's entirely at odds with the way we treat other forms of unlawful speech."
• The San Jose Mercury News: Verizon Ordered To Name Piracy Suspect

The Washington Post said the ruling gave "the recording industry a powerful new weapon in its efforts to crack down on what it considers digital piracy." The recording industry already helped put Napster on the chopping block and it is eyeing peer-to-peer file sharing programs such as Kazaa, Gnutella and Morpheus that millions of Internet surfers use to download and trade music online (recall that a Los Angeles federal judge just ruled a few weeks ago that record companies can go ahead and sue the Australian-based parent company of Kazaa in the United States).

"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 Post said. The Los Angeles Times picked up on the "chilling effect" warning that Verizon held up in its defense: "The goal [of the music industry] is to shatter users' sense of anonymity and immunity, weakening the appeal of file-sharing services. After obtaining the identity of users through their Internet providers, RIAA could send them letters demanding that they stop infringing copyrights or risk large financial penalties and the loss of their Internet access."
• The Washington Post: Recording Firms Win Copyright Ruling
• The Los Angeles Times: Verizon Told To Identify Music File-Swapper (Registration required)

The New York Times hinted at the potential danger for file swappers now that RIAA has been handed a victory: "The record industry, which holds online piracy responsible for much of the precipitous decline in CD sales in recent years, has so far largely limited its lawsuits to companies it sees as aiding large-scale copyright infringement, like Napster and Kazaa. But lately industry officials have signaled that they are preparing to pursue some of the millions of people who infringe copyrights using the Internet."
• The New York Times: Verizon Ordered To Give Identity of Net Subscriber (Registration required)
• The San Francisco Chronicle: Ruling A Triumph For Music Industry

Putting ISPs on the Spot

The Verizon ruling comes on the heels of the Midem music conference in France, where the head of the RIAA must have had a crystal ball at her disposal. According to Reuters, RIAA chairman Hilary Rosen said that ISPs and telecoms will be asked to pay for giving customers access to free file-sharing sites. "We will hold ISPs more accountable," Rosen said. "Let's face it. They know there's a lot of demand for broadband simply because of the availability (of file-sharing)." One reaction to Rosen's logic: "Blaming ISPs for giving these hardened criminals the bandwidth for perpetrating their heinous file-sharing acts is akin to blaming the highway department for creating roads that are used by dope smugglers," security consultant Robert Ferrell told Wired.
• Reuters (via ZDNET UK): ISPs Should Pay For Music Swapping
• Wired: RIAA's Rosen Sets Sights On ISPs
• Stereophile Magazine: RIAA Vs. ISPs