The future of a scare campaign

Last August, the RIAA asked a federal court in Washington, D.C., to force Verizon Communications to divulge the identity of a Kazaa user, kicking off a legal tussle that ended with the RIAA winning a stunning victory. At about the same time, key members of Congress wrote a letter that asked the U.S. Department of Justice to begin criminal prosecutions of P2P users who "allow mass copying," while an RIAA ally on Capitol Hill simultaneously introduced a bill to allow copyright holders to attack computers on P2P networks used for piratical purposes.

A year later, however, there are some signs that the RIAA's antipiracy campaign is faltering.

Last week, Sen. Norm Coleman, R-Minn., criticized the RIAA's pursuit of music swappers, saying he was "concerned about the potential for abuse in the current system." The Massachusetts Institute of Technology and Boston College are fighting the RIAA, and a new survey found that 67 percent of file swappers in the United States are indifferent to copyright concerns, an unexpected jump from 61 percent just three years ago.

But the most daunting obstacle to the recording industry's dogged efforts to rid the Internet of music piracy is a lawsuit that Pacific Bell Internet Services (also known as SBC Communications) filed against the RIAA last week.

It is carefully crafted to portray the RIAA and its contractors who scour P2P networks for infringers as out-of-control juggernauts who care precious little about due process, the rules of the federal court system, Americans' privacy rights and the U.S. Constitution.

You know what? SBC stands a decent chance of winning. If that happens, the case would deal a sore setback to the RIAA and make the dread subpoena process that the Digital Millennium Copyright Act (DMCA) created far less menacing.

Under section 512(h) of the DMCA, any copyright holder can "request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer." The RIAA has repeatedly invoked that section of the law in the last few months, firing off bulk subpoenas in an effort to spread a mix of fear, uncertainty and doubt among file-swappers who, the argument goes, will start panicking over being sued.

If you read between the lines of 19-page complaint, you're left with little choice but to conclude that the RIAA is more interested in maximizing the quantity of subpoenas--and their possible deterrent value--than in carefully abiding by the letter of the law.

We already saw this happen earlier this year, when the RIAA was forced to apologize to a Pennsylvania State University professor for sending him and dozens of other people legal warning saying that they were violating federal copyright law. The RIAA's automated program apparently confused two separate pieces of information--a legal MP3 file and a directory named "usher"--and concluded there was an illegal copy of a song by the musician Usher.

Some of the arguments SBC is making--such as saying the DMCA does not apply to P2P networks--are nearly identical to those that Verizon unsuccessfully made in its court case in Washington. Verizon lost dismally when a district judge ordered it to comply with the RIAA subpoenas and an appeals court has declined so far to intervene. Although a lower court decision on the other side of the continent does not set precedent for California, it's still likely to be influential.

Two things have changed since the Verizon decision, though: First, the threat of the RIAA employing bulk-subpoena tactics is no longer merely a theoretical concern. Second, SBC is making additional arguments that Verizon did not.

SBC says it's received hundreds of DMCA subpoenas already, which makes the potential threat to its subscribers' privacy very real. It expects to receive thousands more, saying the RIAA contractors have "inundated" it with thousands of similar, illegitimate complaints of copyright infringement in the past. At the very least, the company says, the subpoenas must come from a California court instead of one in Washington.

SBC also says it needs a different subpoena for each individual (claiming that "multiple demands for individual subscriber information cannot be grouped in one subpoena"), that it needs additional time to respond to each subpoena so that its subscribers can be notified and possibly hire lawyers to oppose their subpoenas and that the DMCA does not authorize the subscriber's e-mail address to be disclosed.

Probably the most important argument is one that could hit the RIAA where it hurts the most: in the pocketbook. SBC argues that it and other Internet service providers "must be compensated for the substantial costs incurred in complying with these subpoenas" and cites rule 45 of the Federal Rules of Civil Procedure. It says the recipient of a subponea must be "reasonably compensated" for the work required to prepare a response.

What all this means is that SBC is trying to raise the costs for the RIAA to learn the identity of P2P users. This is a good thing for privacy and for Internet users: The DMCA subpoena process is hardly privacy-protective, and it allows copyright holders to learn the identity of an Internet user without filing a lawsuit or obtaining a judge's approval. (Remember that even if SBC wins, the RIAA can still sue P2P copyright infringers. They might just have to file individual lawsuits first, a more expensive proposition.)

Matt Oppenheim, the RIAA's senior vice president of business and legal affairs, told me on Friday that the DMCA "contains absolutely no provision whatsoever for reimbursement...If Congress had wanted reimbursement, Congress would have included it. But they didn't." (Oppenheim may be right. Section 512 of the DMCA suggests--but does not say explicitly--that the federal rules that require reimbursement apply.)

The RIAA added in a statement: "It's unfortunate that they have chosen to litigate this, unlike every other ISP which has complied with their obligations under the law. We had previously reached out to SBC to discuss this matter, but had been rebuked."

Poor things.

Sure, it's temping to beat up on the recording industry, but keep in mind that they're not the ones who enacted the DMCA back in 1998. Congress did. Elected representatives chose the interests of well-connected copyright holders over individual rights to privacy. The Senate approved the DMCA unanimously in October 1998, and the U.S. House of Representatives followed suit by a similar margin a few days later.

If the major record labels win their legal skirmish with SBC, and the DMCA remains intact, the fight will return to Capitol Hill. Let's hope the outcome will be different this time.