Verizon legal defeat unleashes campaign against P2P users

Verizon Communications has lost the latest round in its fight against revealing the names of its Internet subscribers, prompting renewed targeting of P2P users by the recording industry. 

U.S. District Judge John D. Bates ruled on April 24 that the ISP must fork over the identity of one subscriber who allegedly offered free downloadable music files on the Kazaa network. The judge gave Verizon 14 days to appeal the decision.

The ruling concludes the second effort by the Recording Industry Association of America (RIAA) to subpoena Verizon for information about the subscriber. Verizon argued that the RIAA needed to file a full lawsuit against the anonymous subscriber for a subpoena to be valid. But Bates ruled that the RIAA could subpoena the subscriber’s information under existing copyright law without filing a legal case.

The RIAA issued a second subpoena in February and Verizon asked Judge Bates to strike it down on constitutional grounds. Verizon argued that it violated its subscribers’ right to privacy. The ISP also requested that the judge’s original decision be stayed until an appeals court could rule on the issue. But Judge Bates denied both motions ruling that the subpoena laws do not violate the constitutional separation of power, or free speech rights.

Judge Bates found that First Amendment protections regarding anonymous expression do not conflict with the 1998 Digital Millennium Copyright Act. The Act allows the recording industry to force companies like Verizon to identify their customers. All that is required is a subpoena from any U.S. District Court clerk’s office, and a judge is not required to sign the order.

Judge Bates ruled that the subpoena did not pose a “grave or formidable constitutional problem” and said that the Act “hardly amounts to a real or substantial threat to protected expression.” The judge noted that the law required a sworn declaration from a copyright owner that any information demanded from an ISP would only be used to pursue claims related to their own copyrighted material. But the ruling would allow those using file sharing programs to be identified and tracked by anyone claiming to be an aggrieved copyright owner making users more vulnerable to warning letters, civil lawsuits and criminal prosecution.

 “Today’s ruling goes far beyond the interests of large copyright monopolists -such as the RIAA – in enforcing its copyrights,” Verizon senior vice president John Thorne said in a statement. “This decision exposes anyone who uses the Internet to potential predators, scam artists and crooks, including identity thieves and stalkers. We will continue to use every legal means available to protect our subscribers’ privacy and will immediately seek a stay from the U.S. Court of Appeals.”

The recording industry already sued four students last month for running file search services on their university networks. The Verizon decision now gives entertainment companies fresh legal ammunition to pursue file traders.

“We are pleased with the Court’s affirmation that individual users are accountable for illegally uploading and downloading copyrighted works off of publicly accessible peer-to-peer networks,” said Hilary Rosen, RIAA chairman and CEO, in a statement. “This is precisely the issue we have been seeking to focus the public’s attention on, and [the] decision in the Verizon matter makes clear that individual infringers cannot expect to remain anonymous when they engage in this illegal activity.”

The RIAA made good on this promise to “focus the public’s attention” when on April 29, it began sending warnings to people offering downloadable music files on P2P networks.

About 200,000 people who use Kazaa and Grokster received the warning notices and the RIAA is expected to send more in the coming weeks.  The RIAA is claiming that the campaign is intended to be educational, but armed with the Verizon decision, the warning carries an implied threat that file traders can be identified via their ISPs and sued.

The messages read: “It appears that you are offering copyrighted music to others from your computer. Distributing or downloading copyrighted music on the Internet without permission from the copyright owner is ILLEGAL. When you offer music on these systems, you are not anonymous and you can easily be identified.”

The campaign, known as  “Music United,” uses technology that scans P2P networks for files that appear to be copyrighted, and logs the user name and Internet address which can then be sent to the person’s ISP.  This strategy has already been used to send tens of thousands of infringement notices. But the RIAA’s latest campaign reportedly searches for files containing several hundred popular songs, and then sends an instant message to anyone who seems to be offering them for download.

The RIAA says it expects to send out one million messages per week. The system that sends the messages will likely keep logs of those who have been contacted, but the RIAA claims that it would not link that information to enforcement agencies. It certainly seems like an ideal tool to do just that.

While Sharman Networks, which distributes the Kazaa software, has not yet said whether the campaign specifically violates the law, it notes that the RIAA is attacking its own customers. “Sharman Networks has no objections to legitimate efforts to stop copyright infringement by users of P2P software,” said the company’s statement. “We strenuously object to efforts outside the law, in violation of user agreements, or in violation of the privacy rights of millions of P2P users worldwide to indiscriminately spam, mislead or confuse.”