A federal appeals court hands a major setback to the record industry's legal tactics for tracking down and suing alleged file swappers, in a high-profile case pitting copyright law against the privacy rights of Internet users.
John BorlandStaff Writer, CNET News.com
covers the intersection of digital entertainment and broadband.
A federal appeals court on Friday handed a major setback to the record industry's legal tactics for tracking down and suing alleged file swappers, in a high-profile case pitting copyright law against the privacy rights of Internet users.
Reversing a series of decisions in favor of the Recording Industry Association of America (RIAA), the Washington, D.C., court said copyright law did not allow the group to send out subpoenas asking Internet service providers for the identity of file swappers on their networks without a judge's consent.
A federal appeals court rules against the record industry's use of subpoenas to track down alleged file swappers.
The ruling, which focuses narrowly on an unconventional subpoena power, is a blow to the recording industry, but does not address the legality of lawsuits already filed against hundreds of individuals.
"We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect those rights," the court wrote. "It is not the province of the courts, however, to
rewrite (copyright law) in order to make it fit a new
and unforeseen Internet architecture, no matter how
damaging that development has been to the music
While it is a blow to the recording industry, Friday's
decision is unlikely to derail the RIAA's . The
ruling focuses on the unconventional subpoena
power that the organization had claimed in order to
seek ISP subscribers' identities and does not address
the legality of the lawsuits that have already been
File swappers are generally anonymous on peer-to-peer networks, identified only by an Internet Protocol (IP) address assigned by their ISP. But names and addresses of subscribers can be determined by reviewing ISP records, which can connect IP addresses to individual accounts.
Even if the court's decision is ultimately
upheld against appeals, the RIAA still will have the
power to identify and sue file swappers.
The big difference, though, is this: The RIAA would have to file a "John Doe" lawsuit against
each anonymous swapper, a process that would be
considerably more labor-intensive and time-consuming.
That in turn could limit the number of people the association
has the resources to pursue.
"It is a pretty big setback," said Evan Cox, a
copyright attorney with law
firm Covington & Burling. "At the end of the day, it's a practical issue.
It's mostly going to mean considerable extra expense and a fair amount of additional paperwork and
The RIAA said it would continue its lawsuits against
individual swappers, even if it is not able to use
the subpoena power.
An RIAA executive said this new "John Doe" process
would be more intrusive for individuals, not less,
since the organization would no longer be able to
contact potential lawsuit targets and settle before
filing an official suit. For several months, it has
been sending letters to suspected file-swappers after
obtaining their identities from ISPs and offering a
settlement instead of going to court.
"This decision is inconsistent with both the views of
Congress and the findings of the district court,"
RIAA President Cary Sherman said in a statement. "It
unfortunately means we can no longer notify illegal
file sharers before we file lawsuits against them to
offer the opportunity to settle outside of litigation.
Verizon is solely responsible for a legal process that
will now be less sensitive to the interests of its
subscribers who engage in illegal activity."
The appeals court's decision comes after the RIAA sued 382 individuals alleged to have offered copyrighted music for download through file-swapping services such as Kazaa, and settled with 220 people for amounts averaging about $3,000 apiece. Many of those settlements had been made before suits were filed, the organization has said.
The suits have dramatically helped raise awareness of the legal issues surrounding file swapping and have also prompted considerable criticism--most notably after the group's first round of lawsuits targeted a 12-year-old honors student living in New York public housing. That suit was settled just a day after being filed, as the RIAA sought to defuse an immediate public relations backlash.
Most of the legal challenges to the RIAA's strategy have focused on the subpoena process used to obtain identities, rather than on the copyright lawsuits themselves.
The DMCA factor
Since the beginning of last year, the RIAA has cited provisions in the Digital Millennium Copyright Act as the legal basis of its subpoena strategy. The subpoenas were used to get ISPs to reveal the identities of anonymous subscribers who, the RIAA alleged, were infringing
copyrights by swapping files over peer-to-peer networks.
Unlike traditional subpoenas issued by law enforcement
organizations, these were requested by a private
group and were not attached to an ongoing
lawsuit--factors that immediately drew criticism
from civil rights groups.
Verizon, the first ISP to receive
several such subpoenas, challenged them immediately,
saying they were unconstitutional. A lower court ruled in favor of the RIAA earlier this year, setting the
stage for the hundreds of lawsuits it subsequently filed.
SBC Communications, Charter Communications and the
American Civil Liberties Union have also filed their own,
separate challenges to the procedure.
Verizon welcomed Friday's court decision, saying it would
help protect the privacy of people on the Internet.
"Today's ruling is an important victory for Internet
users and all consumers," Sarah Deutsch, a Verizon associate
general counsel, said in a statement. "The
court has knocked down a dangerous procedure that
threatens Americans' traditional legal guarantees and
violates their constitutional rights."
The appeals court did not talk about constitutionality or privacy in its decision Friday, but said only that Congress had not drafted the DMCA to apply to peer-to-peer networks.
The 1998 law came out of a bitter Congressional battle
between copyright holders and telecommunications
companies over liability for online infringement. The conflict ended in a compromise, which said that ISPs would not be held liable
for communications that simply passed through their infrastructure, as opposed to stored on their servers or networks.
Using similar reasoning, the court said the law's
subpoena provisions did not apply to peer-to-peer networks, since the copyrighted material was never
stored on an ISP's network, but was transferred
directly between users' computers.
"This certainly underscores what ISPs have said from
the beginning," said Fred von Lohmann, an attorney for
the Electronic Frontier Foundation, a civil
liberties group that has been critical of the RIAA's
strategy. "This was not the deal that was struck in
the DMCA. Peer-to-peer (networks) did not exist when the DMCA was
being drafted, and Congress did not have this kind of
subpoena factory in mind."
The decision is likely to
spark a new round of political skirmishing over
copyright policy, although the RIAA did not say whether it would lobby Congress
for a change in the law. Indeed, in its decision Friday, the
court said Congress may want to revisit the issue with
the new technology in mind.
"The stakes are large for the music, motion picture,
and software industries and their role in fostering technological innovation and our popular culture" the court wrote. "It is not surprising, therefore, that even as this case was being argued, committees of the Congress were considering how best to deal with the threat to copyrights posed by P2P file-sharing schemes."