Judge upholds law requiring ISPs to name downloaders

A federal judge has again sided with the recording industry in its efforts to subpoena the name of a music downloader, upholding a portion of the Digital Millennium Copyright Act that requires ISPs to turn over names of alleged copyright infringers. Critics said the law provides a cheap and easy way for music companies, or anyone else, to find out the names of anonymous Internet users.

Judge John Bates of the U.S. District Court for the District of Columbia Thursday wrote in an order that a portion of the law, which requires ISPs to turn over names of alleged copyright infringers when a copyright holder requests a subpoena, does not violate the U.S. Constitution. The Recording Industry Association of America (RIAA) is fighting in court with Verizon Internet Services over the names of two customers who allegedly downloaded hundreds of songs through peer-to-peer services. Bates ruled against Verizon in the first case on Jan. 21.

In Thursday’s decision, Bates ordered Verizon to turn over the names of both downloaders sought by the RIAA, but gave Verizon 14 days to appeal the decision. Sarah Deutsch, vice president and associate general counsel for Verizon Communications, said Friday the U.S. Court of Appeals for the District of Columbia has already scheduled oral arguments on the appeal for Sept. 16. Verizon is also asking the appeals court to delay Bates’ order until it can rule on the merits of the case.

A better balance is needed between privacy and copyright protections than the current law, Deutsch said, suggesting that the appeals court might not be the last stop in this case. “If either side loses, it could go to the Supreme Court,” she said. “I think whichever side loses will go to Congress to try to fix this legislation.”

Verizon, along with 28 consumer and privacy groups and 18 other ISPs and ISP organizations, argued against the subpoenas, which are issued by a court clerk, not a judge, when a copyright holder has a reasonable suspicion of a violation. Verizon argued that the DMCA subpoenas only apply when the files are hosted on the ISP’s network, not on a customer’s computer. Verizon also argued that the clerk-issued subpoenas open up a potential for abuse, with anyone wanting to know the name of an anonymous Internet user, including pedophiles and stalkers, able to claim a copyright violation and get a subpoena.

“This ruling means that the RIAA, or anyone else claiming to represent a copyright owner, can demand that your ISP turn over your identity to them without any notice to you or the opportunity to prove that you didn’t do anything wrong,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, in a statement. “The privacy of Internet users has taken a big blow today.”

But Bates, in a 58-page ruling, said a clerk-issued subpoena does not violate the U.S. Constitution’s prohibition on using court powers without a pending case or controversy. He said the clerk-ordered subpoenas are administrative in nature, falling outside the Constitution’s restrictions on a court’s power. The judge also rejected Verizon’s protest on free speech grounds, saying requesting the name of a music downloader does not create a censorship of speech.

Bates noted that Verizon’s terms of service forbid copyright infringement. “In the end, Verizon’s customers should have little expectation of privacy (or anonymity) in infringing copyrights,” Bates wrote.

The RIAA cheered the ruling. “If users of pirate peer-to-peer sites don’t want to be identified, they should not break the law by illegally distributing music,” RIAA President Cary Sherman said in a statement. “Today’s decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability.”

Deutsch said the judge ignored the safety concerns Verizon raised about the law. “He seemed to say copyright always trumps freedom of expression and privacy,” she added.

The decision goes beyond protecting “copyright monopolists,” said John Thorne, senior vice president and deputy general counsel for Verizon, in a statement.

Verizon said it will appeal Bates’ decision, and the company is currently fighting a second subpoena from the RIAA. John Thorne, senior vice president and deputy general counsel for Verizon, said in a statement the company will immediately seek a stay of Bates’ order in the U.S. Court of Appeals. The decision goes beyond protecting “copyright monopolists,” he added in the statement.

“This decision exposes anyone who uses the Internet to potential predators, scam artists and crooks, including identity thieves and stalkers,” Thorne added. “We will continue to use every legal means available to protect our subscribers’ privacy.”