Court takes a close look at P2P subpoenas

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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.