Is the RIAA out of the ballgame?

It's been a three-strikes week for the record industry's campaign against peer-to-peer networks.

On Friday, a Washington, D.C., federal appeals court tossed out a key part of the industry's legal strategy for tracking down and suing music swappers. A day earlier, Holland's supreme court said Kazaa's original owners weren't liable for copyright infringement by people using their software. And last week, Canadian regulators said downloading copyrighted music from peer-to-peer networks--although not uploading--was legal in that country.

Is the Recording Industry Association of America no longer in the game? Far from it. In fact, hundreds of lawsuits against individual file swappers remain open, and more are on the way. But taken together, the decisions represent a step backward for copyright holders' attempts to control unrestricted file swapping on peer-to-peer networks.

Groups such as the RIAA should absolutely have tools to enforce their copyrights online. But the courts aren't giving carte blanche to music pirates. In their campaigns against file swapping, the recording industry and movie studios have pursued unconventional legal strategies with broad implications for individual privacy, due process and technology policy. Courts are right to push back on issues that should be the focus of a wider societal debate.

In its effort to track down people who are illegally trading music online, the RIAA has tried to take advantage of nearly unprecedented powers allowing a private organization to issue subpoenas for Internet users' personal information, even before a lawsuit is filed.

Is the Recording Industry Association of America no longer in the game? Far from it.

That may be simpler and even less intrusive than filing a lawsuit first--but any time the government asks for such sweeping rights to access personal information, the request is closely scrutinized by courts, policy makers and analysts to prevent abuses of power. If, in fact, Congress means to give subpoena powers to copyright holders, private-sector companies or organizations should get the same level of scrutiny.

In their attempts to shut down networks like Napster and Kazaa, copyright holders have said technology companies should be held liable for the actions of people using their software. That's also an issue that deserves a public airing outside the context of a copyright infringement suit, whether in the Netherlands or the United States.

File-swapping companies may not be particularly sympathetic defendants--all of them know that their software is used for copyright infringement, and they rely on this to build large user bases, after all. But the issue could also affect other technology companies, whose products might predictably be used in the course of illegal activities.

Giving copyright holders that much influence over the progress of technology is a decision that should be taken very cautiously. The Dutch judge recognized that this week, as a Los Angeles federal court judge did in April, when he ruled that file-swapping tools were legal to distribute, even if the copyright infringement that took place using them was not.

In the Los Angeles case, as well as in Friday's ruling against the RIAA subpoenas, judges ended their statements by appealing to the U.S. Congress to speak more decisively on these issues.

The RIAA has tried to take advantage of nearly unprecedented powers.

To some extent, we've had these debates already. In 1998, Congress passed the Digital Millennium Copyright Act, a law protecting digital property rights that was the result of often-bitter negotiations between copyright holders and telecommunications companies.

In fact, that law was a compromise between powerful industry lobbying organizations with little input from the public and little attention given to effects it might have beyond copyright law. It was made at a time when few lawmakers had a deep understanding of technology or the Internet. Certainly, it was passed before peer-to-peer software irrevocably changed the technology and business landscapes.

If the same debate were held today, with the knowledge gained from the explosion in file swapping and ordinary Internet use, policy makers might come to exactly the same conclusions.

But these are issues with serious implications for individual privacy, due process, free speech and technological progress, and those are exactly the kinds of areas where checks on private-sector companies' actions, as well as government actions, are needed.