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Court takes a close look at P2P subpoenas

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Sep 23, 2003, 6:53:34 PM9/23/03

Court takes a close look at P2P subpoenas

By Ann Harrison

The 1998 copyright law, cited as the basis for hundreds
of
subpoenas issued by the Recording Industry Association
of
America, is finally under scrutiny by a federal appeals
court.
Several months ago, Verizon tried to argue that the
Digital
Millennium Copyright Act did not support the RIAA's
request that
Verizon turn over the names of subscribers allegedly
involved in
trading copyrighted material.

U.S. District Judge John Bates ruled in January that
the RIAA's
use of the law was correct. But the three-judge panel
now
considering the case for the U.S. Court of Appeals for
the
District of Columbia Circuit may come to a different
conclusion.
The judges barely considered Verizon's claim that the
subpoenas
violated the privacy and free speech rights of its
customers.
Instead, they dwelt on the details of the DMCA and
whether
allowing subpoenas without a lawsuit met the
constitutional
requirement for a "case or controversy." An appellate
lawyer
with the U.S. Department of Justice, Scott McIntosh,
went so far
as to tell the court that the case did not raise
"substantial"
constitutional question.

One of the judges, John Roberts, questioned whether
Verizon
should have been forced to turn over the names without
the RIAA
having to file a lawsuit. Roberts hypothesized that if
someone
entered his open library door, "that doesn't make me
liable for
copyright infringement." But Roberts also added that
the case
concerned a man who made 600 copyrighted works
available. "Is
there any legitimate purpose for making available for
copying
600 copyrighted works?" the judge asked.

Roberts went on to suggest that Verizon made money from
broadband services which customers can buy to support
file
sharing. Of course people buy broadband for all sorts
of reasons
and Verizon lawyer Andrew McBride pointed out that
Verizon also
sells bandwidth to sanctioned digital music Web sites.
Roberts
also argued that the DMCA was only intended to support
subpoenas
aimed at files hosted by ISPs, and not those on user's
hard
drives. But Chief Judge Douglas Ginsburg cited an
article from
Salon.com, written before passage of the DMCA, which
described
how users were trading files using File Transfer
Protocol. Based
on this reasoning, Ginsberg said he believed Congress
did intend
for the DMCA to cover the actions of individual
computer users.

If the panel overturns the lower court's decision, the
RIAA may
be forced to file more expensive "John Doe" lawsuits
instead of
its current practice of suing hundreds of specific
individuals.
Perhaps the best solution to the issue was proposed by
Sen. Sam
Brownback (R-Kan.) who introduced a bill Sept. 16 that
would
amend the DMCA to immunize ISPs from such subpoenas.
The
Consumers, Schools, and Libraries Digital Rights
Management
(DRM) Awareness Act of 2003 could be an important move
toward
finding the middle ground between the rights of
Internet users
and the interests of the entertainment industry.

The DRM Awareness Act protects the privacy of Internet
users by
preventing copyright holders from forcing ISPs to
reveal the
names or other identifying information of their
subscribers in
preparation for filing a civil lawsuit. The ability to
exchange
digital material on the Internet does not erase the
right of
Americans to privacy and anonymity. This bill would
help make
sure that there is some oversight and deliberation by
the courts
before ISPs are forced to turn over the names of their
subscribers.

The proposed legislation would also require that CDs,
DVDs, and
software that limits consumer uses with DRM be clearly
labeled
as such. It would also limit the Federal Communication
Commission's ability to impose federal regulations on
digital
television and safeguard the right to donate digital
material to
libraries and schools. And finally, the DRM awareness
act would
help protect fair use rights to digital media.

I encourage you to contact your Congressional
representative and
encourage them to co-sponsor this bill. It protects
your
interest in a balanced copyright system and could help
show the
way out of the current wilderness of copyright
litigation
imposed on file traders.