A Legal Matter, Baby

I should have gone to law school – maybe I still will. Verizon vs. RIAA:

The recording industry and the nation’s largest telephone company are crossing legal swords in what could be a test case of how far big record labels can go to track down computer users who swap music online.

The industry is seeking to force Verizon Communications Corp., which also provides customers with high-speed Internet access, to turn over the name of one of its users who the record labels claim has made copyrighted music available for download by others. The Recording Industry of America also demanded that Verizon block access to the user’s music files.

The industry contends that it is losing millions of dollars in music sales because potential customers are instead downloading digital copies from others in violation of copyright law. The battle with Verizon is part of an aggressive campaign by the record labels on Capitol Hill, at the Justice Department and in the courts to crack down on the practice.

Among other tactics, the industry is using automated software agents — called “bots,” short for “robots” — to patrol the Internet and identify computers with music available for download through a popular technology known as file sharing. Although the bot can detect the presence of music files available for download, it can identify only an Internet address code and the service provider, not the identity of the user.

The music industry sent a subpoena to Verizon for the name of one user but was rebuffed. It then went to the U.S. District Court in Washington, asking the court to enforce the subpoena.

Verizon and a coalition of Internet advocacy groups argue that if the recording industry prevails, the constitutional right to privacy of millions of Internet users would be compromised.

Attorney Philip S. Corwin on the situation:

Having spent last night reading through the excellent motion to dismiss filed by Verizon (as well as the compelling amicus brief filed by a broad array of
civil liberties and privacy groups) I came to appreciate the tremedous importance of this case. RIAA is trying to use a provision of the DMCA that provides it with the coercive subpoena power of the judiciary without the incovenience of actually filing suit and having a judge review the merits of its allegations — but that extraordinary power is only meant to be available when the ISP is actually hosting infringing material, not acting as a mere passive conduit for subscriber communications. Were it to succeed in this test case, the RIAA bots that seek out the transitory IP addresses of P2P software users could generate tens of thousands, if not millions, of requests for similar subpoenas, which in turn would provide a handy road map to the most attractive individuals to sue. Plus, the compliance burden would be so severe that the ISPs and telecomms might be in the mood to cut a deal.

RIAA’s reading of the statute is so tortured that it is hard to believe the suit was brought with a firm belief in its ultimate success. But luck just might provide a judge who actually buys it. And, even if it doesn’t , losing can have its rewards. Next Congress, you can lobby to “clarify” the statute to close this “loophole” created by “judicial misinterpretation”. And that lobbying campaign need not even be brought with a firm belief in its success. For trade groups always like to have long wish lists for Congress just as a five year old has a long list for Santa — even if he fails to deliver on the pony, you just might get the red firetruck (for our GenXers, substiture XBox and GameBoy…;-).

That’s how the game is played.