Judge orders Verizon to identify P2P user

In an important test case for the rights of P2P users, a federal judge has ruled that Verizon must turn over the identity of a subscriber who allegedly has been downloading more than 600 copyrighted songs a day from a file-trading site.

U.S. District Judge John Bates determined that the 1998 Digital Millennium Copyright Act (DMCA) requires the ISP to give the Recording Industry Association of America (RIAA) the name of its subscriber, a Kazaa user who has also posted hundred of swapable music files.

The RIAA has other ways to try to force Verizon to turn over the name, but it wants to rely on the DMCA. It points to section 512 of the Act, which permits a copyright owner to subpoena a “service provider” to supply information about a subscriber without a judge’s approval.

Verizon argues that section 512 does not apply to ISPs because service providers only convey the file request to the P2P service, and do not host the potentially infringing material on their own servers. Ironically, Verizon was one of the parties that originally negotiated the DMCA and attempted to focus the debate on constitutional issues without raising a direct challenge to the Act. 

Bates swept aside Verizon’s argument claim ruling that “the court concludes that the subpoena authority of section 512 applies to all service providers within the coverage of the Act, including Verizon.”

In a 37-page decision, Bates wrote: “Under Verizon’s reading of the Act, a significant amount of potential copyright infringement would be shielded from the subpoena authority of the DMCA. That would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish.”

The Supreme Court’s recent ruling upholding the extension of copyrights also seemed to give Bates ammunition to defend what he claimed was Congress’ intent in the DMCA. He said that decision upheld “the wisdom of Congress’ action” which he was not entitled “to second guess.”

A group of 12 consumer and privacy rights organizations filed an amicus brief for Verizon which argued that section 512 of the DMCA was unconstitutional because it violated the right to online anonymity. “Purported copyright owners should not have the right to violate protected, anonymous speech with what amounts to a single snap of the fingers,” they wrote.

Bates did not address the First Amendment argument because Verizon had not directly raised the issue. But he said that point would not have influenced his decision. “Neither Verizon nor any amici has suggested that anonymously downloading more than 600 songs from the Internet without authorization is protected expression under the First Amendment,” Bates wrote. “To be sure, this is not a case where Verizon’s customer is anonymously using the Internet to distribute speeches of Lenin, Biblical passages, educational materials, or criticisms of the government – situations in which assertions of First Amendment rights more plausibly could be made.”

Verizon says it plans to appeal the decision to the U.S. Court of Appeals for the D.C. Circuit. But if the entertainment industry is allowed to use the DMCA as a blunt instrument against Internet providers, it will be able to flood these companies with subpoenas to sniff out the identities of hundreds of thousands of alleged lawbreaking file traders. Most importantly, they will be able to do this without having to file individual lawsuits against users or subscribers that would be difficult, costly, time consuming and expose the entertainment industry to bad publicity.

Another amicus brief submitted by a coalition including the U.S. Internet Industry Association and Yahoo, charged that the RIAA was attempting to shift the burden of copyright enforcement to ISPs. “Can anyone doubt that RIAA intends this as a test case?” the brief said.  “If this subpoena is enforced, others will soon follow. That will impose substantial costs for the large ISPs, who may receive thousands of subpoenas, and for the smaller ISPs, for which the burden of even an isolated subpoena may prove overwhelming.”