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By David McGuire
washingtonpost.com Staff Writer
Friday, December 19, 2003; 2:30 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.
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, an attorney 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."
"It had always been clear that litigation wasn't going to provide the solution to the challenges the recording industry faces," said Sen. Norm Coleman (R-Minn.), who has criticized the recording industry for trying to solve the online piracy problem with lawsuits. "I think this will accelerate a process that's already going on. There's got to be more conversation between the peer-to-peer folks, the technology folks and the industry."
RIAA President Cary Sherman said the ruling could lead to more lawsuits against people suspected of illegally trading music online.
"We can and will continue to file copyright infringement lawsuits against file sharers who engage in illegal activity," Sherman said in a prepared statement. The ruling "unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation."
Using the DMCA subpoenas, the RIAA was able to obtain the names of suspected file sharers from ISPs without filing lawsuit and without getting a judge's approval. Without that subpoena power, the RIAA would have to file suit against unnamed file-swappers in order to obtain their identities.
"Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity," Sherman said.
Verizon Associate General Counsel Sarah Deutsch called Sherman's assertion "completely disingenuous."
"It's not on their agenda to care about the subscriber or any of the subscribers' rights, but automate the process even further," Deutsch said.
Just this past week, the RIAA stepped up its subpoena efforts by requesting the names of multiple subscribers in a single subpoena. Had it worked, that tactic would have made it even harder for Verizon to notify its customers that they had been targeted by the RIAA, Deutsch said.
"This decision will ensure that the recording industry will have to follow the legal process that everybody else in America uses. Consumers will gain important due process rights," Deutsch said.
Former RIAA Chairman Hilary Rosen warned that today's decision will trigger "more surprises."
"I think that the industry that is so far down this path that they can't let this decision stop their efforts against individuals," she said.
Wayne Rosso, chief executive of Madrid-based OptiSoft, which operates the Blubster and Piolet file-sharing networks, said, "This is a great day for technology and American jurisprudence. Thank God the courts are there to stop these Stalinistic tactics that the RIAA uses to abuse the rights of Americans."
The RIAA would not comment on whether it intends to appeal the ruling.
The ruling comes on the same day that the Dutch Supreme Court dismissed a claim by Buma/Stemra, a European music representation group, that the online file-sharing service Kazaa should be liable for people who use its software to trade copyrighted files. The decision affirmed a lower court's ruling. Buma/Stemra asked the Dutch courts to impose a fine of $124,000 per day on Kazaa.
http://www.washingtonpost.com/wp-dyn/articles/A14836-2003Dec19.html
washingtonpost.com Staff Writer
Friday, December 19, 2003; 2:30 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.
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, an attorney 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."
"It had always been clear that litigation wasn't going to provide the solution to the challenges the recording industry faces," said Sen. Norm Coleman (R-Minn.), who has criticized the recording industry for trying to solve the online piracy problem with lawsuits. "I think this will accelerate a process that's already going on. There's got to be more conversation between the peer-to-peer folks, the technology folks and the industry."
RIAA President Cary Sherman said the ruling could lead to more lawsuits against people suspected of illegally trading music online.
"We can and will continue to file copyright infringement lawsuits against file sharers who engage in illegal activity," Sherman said in a prepared statement. The ruling "unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation."
Using the DMCA subpoenas, the RIAA was able to obtain the names of suspected file sharers from ISPs without filing lawsuit and without getting a judge's approval. Without that subpoena power, the RIAA would have to file suit against unnamed file-swappers in order to obtain their identities.
"Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity," Sherman said.
Verizon Associate General Counsel Sarah Deutsch called Sherman's assertion "completely disingenuous."
"It's not on their agenda to care about the subscriber or any of the subscribers' rights, but automate the process even further," Deutsch said.
Just this past week, the RIAA stepped up its subpoena efforts by requesting the names of multiple subscribers in a single subpoena. Had it worked, that tactic would have made it even harder for Verizon to notify its customers that they had been targeted by the RIAA, Deutsch said.
"This decision will ensure that the recording industry will have to follow the legal process that everybody else in America uses. Consumers will gain important due process rights," Deutsch said.
Former RIAA Chairman Hilary Rosen warned that today's decision will trigger "more surprises."
"I think that the industry that is so far down this path that they can't let this decision stop their efforts against individuals," she said.
Wayne Rosso, chief executive of Madrid-based OptiSoft, which operates the Blubster and Piolet file-sharing networks, said, "This is a great day for technology and American jurisprudence. Thank God the courts are there to stop these Stalinistic tactics that the RIAA uses to abuse the rights of Americans."
The RIAA would not comment on whether it intends to appeal the ruling.
The ruling comes on the same day that the Dutch Supreme Court dismissed a claim by Buma/Stemra, a European music representation group, that the online file-sharing service Kazaa should be liable for people who use its software to trade copyrighted files. The decision affirmed a lower court's ruling. Buma/Stemra asked the Dutch courts to impose a fine of $124,000 per day on Kazaa.
http://www.washingtonpost.com/wp-dyn/articles/A14836-2003Dec19.html
You beat me to this one. 
