Washington (djc) – A recent Washington, D.C. federal appeals court ruling said that the American recording industry must first obtain a subpoena from a judge before forcing Internet service providers to reveal the names of online music swappers.
The ruling was seen as a sharp blow to the Recording Industry Association of America (RIAA), who began a widespread suing campaign against MP3 traders in September. Under an expedited legal process boosted by a clause in 1998’s Digital Millennium Copyright Act (DMCA), the RIAA was previously able to obtain subpoenas on alleged infringers through a court clerk, rather than a judge.
Since then, the association has sued 382 people and issued warnings to 398 others, in an attempt to curtail the habits of some 60 million U.S. digital music swappers. The industry also wanted to recoup some of the potential profits siphoned out by peer-to-peer trading services like Kazaa and Grokster; the RIAA estimated that P2P trading has cost the worldwide recording industry at least $5 billion thanks to reduced sales. Indeed, a report released Thursday by Nielsen SoundScan showed that total U.S. album sales continued to fall in 2003, by 4.7 per cent.
While the association managed to settle with 220 defendants and had 1,024 others sign letters vowing to delete their files and never steal music again, privacy advocates and ISP owners disputed the RIAA’s tactics as unfair. A smattering of well-publicized lawsuits — including those against a 12-year-old girl, an unwitting grandfather, and a Boston woman who did not own a computer — did little to help the RIAA’s cause. Verizon Communications Inc. refused to comply with the RIAA, leading to this court battle.
“We are not unsympathetic either to the RIAA’s concern regarding the widespread infringement of its members’ copyrights, or to the need for legal tools to protect those rights,” wrote ruling judge Douglas Ginsburg. “It is not the province of the courts, however, 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.”
Judge Ginsburg went on to say that Verizon was “acting merely as a conduit” for digital music files and that the industry’s argument that ISPs are responsible for data exchanged by its users “borders upon the silly.”
RIAA representatives hinted that the group might appeal to the Supreme Court in the future, or attempt to amend the Copyright Act through a bill in Congress. Meanwhile, the recording industry will continue to pursue lawsuits through a more formal subpoena process, and ask ISPs to voluntarily notify music swappers that they are in danger of being sued.
Consumer rights advocates are pleased by the ruling. “Internet users are the winners in the Verizon case,” said Electronic Frontier Foundation staff attorney Wendy Seltzer. “The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan.”
U.S. Senator Sam Brownback, who has made a name for himself through his stance against the RIAA’s actions, said in a statement that “this bill will provide privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.”
This decision follows another important ruling, by the Dutch Supreme Court. A judge ruled that the makers of Kazaa, currently the world’s most popular file-sharing program, are not liable for any violation of copyright that may occur via its free software.
Meanwhile, the Canadian Recording Industry Association (CRIA) has begun its own manhunt this month, and three of Canada’s top ISPs said they would cooperate if presented with a court order.
Copyright law in Canada is distinct from the United States, however, and some argue that downloading music is protected by levies on recordable media — which may soon extend to portable hard drives and flash memory. Thus, the CRIA is more likely to go after mass uploaders, who are freely handing out protected intellectual property.
