Washingtonpost.com: Live Online

On January 21, a U.S. District Court judge in Washington ruled that a major telecommunications company must aide the music industry's efforts to stop online piracy. The judge backed a Recording Industry Association of America motion to require Verizon Communications to turn over the name of a Verizon DSL subscriber who allegedly was trading in pirated music files online. The case is seen as an important victory for the entertainment industry in its quest to stop illegal trading ot copyrighted materials.

Joining us online to talk about the ruling was Megan Gray a principal at Washington, D.C.-based law firm Gray Matters, specializing in intellectual property, First Amendment and Internet issues. Gray filed friend-of-the-court briefs on behalf of the Electronic Privacy Information Center, the Electronic Frontier Foundation, Public Knowledge and several other public interest groups in the case between Verizon and the RIAA. Gray will discuss the ruling's on Internet privacy and file sharing.

Washingtonpost.com's David McGuire moderated the discussion.

An edited transcript follows:

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

David McGuire: Hi Megan, thanks for joining us. Yesterday's ruling was a huge win for copyright owners in their crusade to track down and prosecute people suspected of illegally trading music. Who were the losers in yesterday's decision and how will the ruling affect our privacy online?

Megan Gray: As a result of the Court's decision, anyone using the Internet is at risk of being improperly targeted by over-zealous copyright owners. The bottom line of the Court's decision is that anyone claiming to be a copyright owner has the unilateral right to demand that an ISP identify the actual name and contact details of any P2P user.

Herndon, Va.: What's the next step now that the RIAA has the subscriber's name? Do they send him a cease-and-desist letter? Do they take him to court?

Megan Gray: That is really up to RIAA - my sense is that RIAA is looking for an unsympathetic P2P user to sue, so perhaps RIAA will do some sniffing around to determine if the individual fits this mold. If yes, RIAA may sue him. If no (for example, if it is the daughter of a top recording artist), then RIAA may do nothing.

Silver Spring, Md.: Will you be involved in an appeal? Do you see this case going all the way to the Supreme Court?

Megan Gray: Some of the amici groups may hire me to write an appellate brief. As of right now, nothing has been decided. I don't know if this case will go all the way to the Supreme Court - it has enough sex appeal to interest them, though.

Alexandria, Va.: It strikes me that this "victory" for the RIAA will only fuel the public backlash against the recording industry's tyrannical definition of copyright. But do you think it will be enough to build a public groundswell in favor of overturning the DMCA?

Megan Gray: Certainly this case will continue public debate about the proper role of copyright law in our technological age. But, it will (be) difficult to convince legislators to overturn the DMCA - that said, amendments to relieve certain aspects of the DMCA are possible.

Greeley, Colo.: What ever happened to the bill some House member from California filed that would allow copyright holders to unilaterally invade a server to remove unlicensed content? Has this been filed, do legislators really understand the implications of such an action (essentially abdicating governmental responsibilities and cutting the judicial branch out of the loop in one stroke), and is there a good chance for even more goofiness of this nature as legislators receive gobs of money from big media content providers?

Megan Gray: Congress went home for the holidays before that bill got very far. We expect the legislator to re-introduce the bill during this session. The impetus behind this bill, and similar proposed laws, is that rampant copyright infringement occurs on the Internet, and proponents believe that that is so horrendous that "the means justify the ends" - in other words, cutting the judiciary out of the loop is justified here or else the music industry will not have any effective tool to fight against the infringing acts. We do not agree with that assessment - John Doe lawsuits can be very fast-track, for example.

Falls Church, Va.: What burden of proof does the RIAA or any copyright holder have to present in order to obtain subscriber information from an ISP? In other words, what has to be presented before Verizon has to hand over info? And is that determination made by a judge?

Megan Gray: You've hit the import of the case right on the nose - the burden of proof is zero. All RIAA or any purported copyright holder needs to do is submit a signed letter saying (1) I am a copyright owner in [insert name of copyrighted work]; (2) the material at [insert description] infringes my copyright; (2) I swear under penalty of perjury that the purpose that I am submitting this paper is to get the identity of an alleged infringer and I will use that information only to protect my copyrights. The purported copyright holder submits this signed letter to a court clerk - no judge or lawyer at the court reviews this document, ever. Under the DMCA, the court clerk is *required* to approve the letter and issue a subpoena.

David McGuire: We hear a lot about the Digital Millennium Copyright Act (DMCA) of 1998. What did that law do to rile so many public interest groups? Also, you said laws could be passed to soften some DMCA provisions. What sorts of measures can we expect out of this Congress?

Megan Gray: The DMCA riled so many public interest groups because it was enacted as submarine legislation - it wasn't on the radar screen of many public interest groups until it was too late. As a result, the consumer's interest was not protected as much as we think is appropriate. One possible amendment to the DMCA is legislation that will strengthen fair use rights, or at least make them more clearly defined as a protected carve-out from the DMCA.

Alexandria, Va.: This ruling isn't particularly stupid. In fact, it's a correct judicial interpretation of the law. I still think the law is ridiculous, however. How can a private Internet user like me help lobby to get the law changed? Hilary Rosen's bank account at the RIAA is a little bigger than mine.

Megan Gray: This may sound trite, but it really is true: get involved, write your congress-person, sign up for newsletters, participate in online campaigns, educate yourself. Groups like EFF and Public Knowledge will gladly alert you to specific projects where your activism will be helpful - just sign up for their newsletters and make sure you read them.

David McGuire: The copyright lobby has a lot of clout, but what about the bigwigs on the other side of this equation? Do you think this ruling will mobilize powerful interests who stand to lose sizable sums if this ruling becomes the law of the land?

Megan Gray: Yes, I think it will help to mobilize contrary forces - in fact, it already has: Verizon was initially a proponent of the DMCA. As result of evolving technology, business models, and the over-reaching of copyright interests, now Verizon is battling against the DMCA in this very case.

Orono, Me.: Correct me if I am wrong on this, but if buy a CD and make a tape of some of the songs on it and give it to a friend...I'm not violating copyright laws, right? If that's the case..then why should trading files over the Internet be treated differently?

Megan Gray: Questions of what constitutes copyright infringement versus protected fair use are notoriously difficult to answer in the abstract. No bright line exists. Let me turn the tables on this and ask you: if you buy a CD and make a copy and share it with 1,000 of your friends, or everyone at your college, does that constitute fair use? Do you think it should?

Arlington, Va.: Does yesterday's case have anything to do with the case in Norway where the kid who wrote some software to watch DVDs on a Linux machine won? To me it seems like it's a fair use to be able to watch DVDs you've bought as the Norwegian court said, but I think the RIAA may have a stronger case in saying that people "trading" songs via P2P are engaging in piracy. Don't the artists/rights holders have a right to expect compensation for their IP?

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Megan Gray: No, the RIAA-Verizon case and the Norway case are entirely different legal cases. The interests behind these cases are similar though - in both, the music industry is vigorously asserting copyright protection in the face of technological changes.

Minneapolis, Minn.: How, if at all, does this order impact an ISP's rights and responsibilities under the USA Patriot Act?

Megan Gray: DMCA and Patriot Act do not really intertwine. It is interesting, however, because the Court's ruling means that the government has to establish more evidence to learn the identity of a suspected terrorist than a purported copyright owner has to establish to learn the identity of a suspected infringer.

Arlington, Va.: It seems like the vice has tightened on ISPs with this ruling. What will other major players, such as America Online and Earthlink, do in reaction to this ruling? If I am a member of these services and happen to download music from the Net, is my name going to be turned over to the music industry?

Megan Gray: Yes, the copyright owners are definitely circling the wagons, with the ISPs caught in the middle. Given the weak economy, particularly for ISPs these days, the likely major players are pinched to do anything. On one hand, Earthlink agrees with Verizon; Earthlink may want to challenge similar subpoenas - but Earthlink is no doubt reluctant to spend the legal fees to do that. AOL, as another example, is equally conflicted - remember AOL is part of Time Warner, a massive copyright owner. So AOL is often sitting out these battles.

Gaithersburg Md.: So, OK, the court makes Verizon turn over their subscriber's name... What's NEXT? They hold Verizon liable for the subscriber's action?

Megan Gray: The DMCA is all about providing immunity to ISPs like Verizon - so long as Verizon turns over the information and otherwise complies with the DMCA, RIAA will have a hard time making Verizon liable for its users' acts of infringement.

Fairfax, Va.: I would like to know how the RIAA "monitored the activities of a Verizon Online subscriber extensively using the KaZaA file-sharing service." To my knowledge they would need to connect to the line either at the end-user point or able to connect and monitor all or selected circuits at Verizon's switching center(s). Either way, it seems like a wiretap. Did Verizon give permission to the RIAA to monitor internet traffic?

Megan Gray: No, there wasn't a wiretap - and Verizon did not give RIAA any special access. In a P2P system like KaZaA, it is fairly easy (and legal) for RIAA to figure out who is trading large music files at any one time.

David McGuire: Are detractors of this ruling barking up the right tree? Most of the criticism I've heard is of the Digital Millennium Copyright Act (DMCA) itself, not of Judge Bates' interpretation. Should this ruling be appealed, or should DMCA opponents conserve their energies to attack the law itself?

Megan Gray: Well, anytime the subject of the DMCA comes up, people focus on discussing negative aspects of that Act generally. But Judge Bates is not free from criticism here - he was presented with grave constitutional issues with the DMCA subpoena provision, yet he chose to side-step those issues. The Court substantively addressed *only* the statutory construction arguments, and essentially ignored the more serious constitutional infirmities in the statute.

David McGuire: Sadly our time is up. I'd like to thank Megan Gray for taking the time to join us today and our audience for asking so many thoughtful questions.