Backlash over RIAA’s bid to identify alleged copyright infringers

As the Recording Industry Association of America continues its bid to track down and sue P2P users, there is evidence that the waves of subpoenas it is sending out this summer is beginning to finally generate a backlash. Sen. Norm Coleman (R-Minn.) recently criticized the RIAA’s campaign and stated he was “concerned about the potential for abuse in the current system.”

But the biggest development is a lawsuit filed in a San Francisco federal court against the RIAA by Pacific Bell Internet Services, the ISP unit of SBC. According to Pacific Bell, it has received hundreds of subpoenas to reveal the names of some of its subscribers, which could significantly violate the privacy of its subscribers. The company says that in the past, it has been inundated with thousands of similar, illegitimate complaints generated by RIAA contractors.

SBC says a federal court ruling this spring, which forced Verizon to turn over the names of its subscribers, has made ISPs open to many such bogus copyright claims. The company said in its lawsuit that it has received 207 requests from record companies for the names of its subscribers and more than 16,000 warnings of alleged copyright violations by an independent investigator.

SBC is charging that the RIAA is bending the law by sending this latest round of subpoenas from a Washington court instead of one based in California where SBC is located. It is also condemning the RIAA’s practice of using one subpoena to demand information on a number of subscribers. SBC says it needs more time to notify individual subscribers named in the subpoenas, and give these subscribers time to hire lawyers and potentially oppose the subpoenas. SBC is also disputing whether the Digital Millennium Copyright Act (DMCA) gives the RIAA the right to demand disclosure of a subscriber’s e-mail address.

The most potentially powerful part of the lawsuit is SBC’s claim that it should be compensated for the high costs of complying with these subpoenas – as should other ISPs. SBC cites Rule 45 of the Federal Rules of Civil Procedure, which requires that the recipient of a subpoena must be “reasonably compensated” for the labor needed to reply. The RIAA has responded that the DMCA does not require reimbursement for reply to subpoenas.

The RIAA issued a statement noting it was unfortunate that SBC has chosen to litigate, “unlike every other ISP, which has complied with their obligations under the law.” The RIAA has already apologized once for flaws in its automated program that sent out false legal warnings. But if the SBC lawsuit forces the RIAA to file individual lawsuits against alleged copyright violators, it could raise the cost of the campaign against file trading and slow down or halt these actions.

Certainly Congress needs to step in and reinterpret the provisions of the DMCA to prevent this interpretation of the copyright laws. Currently a copyright holder can request the clerk of any U.S. district court to issue a subpoena to a service provider for identification of an alleged infringer. But if the SBC wins this lawsuit, which it stands a good chance of doing, it could halt this current wave of bulk subpoenas intended to frighten P2P users.