Labels battle to hold onto DMCA win

The recording industry fights to preserve a preliminary courtroom victory, arguing that Verizon has no choice but to hand over the identity of an alleged Kazaa music pirate.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
WASHINGTON--The recording industry on Friday fought to preserve a preliminary courtroom victory, arguing that Verizon Communications has no choice but to hand over the identity of an alleged Kazaa music pirate.

In a strongly worded brief filed in federal district court in Washington, the Recording Industry Association of America (RIAA) assailed Verizon's request for a stay of a Jan. 21 order as a brazen attempt by the telecommunications firm to "evade its responsibilities under the law."

The lawsuit, filed last August, pits the 1998 Digital Millennium Copyright Act (DMCA) against Internet users' right to remain anonymous online. With the vocal assistance of civil liberties groups, Verizon has argued that the DMCA's turbocharged subpoena process is not sufficiently privacy-protective, because it can be used to glean the identities of hundreds or thousands of suspected peer-to-peer pirates at a time.

Matthew Oppenheim, a senior vice president at the RIAA, said in a conference call Friday that Verizon was exaggerating the privacy risks of complying with requests made under the DMCA. Verizon and its allies, including a former Clinton administration privacy official, have suggested that copyright holders should file a "John Doe" lawsuit to unmask suspected peer-to-peer infringers instead of wielding DMCA subpoenas.

"In private conversations with the RIAA, Verizon has made it very clear that this is not a privacy issue," Oppenheim said. "They said they would be happy to turn over the names of some of their customers, as long as they don't have to turn over the names of a lot of their customers."

At issue in the RIAA's request is section 512 of the DMCA, which permits a copyright owner to send a subpoena ordering a "service provider" to turn over information about a subscriber. The service provider must promptly comply with that order, and no judge's approval is required first. In August, the RIAA asked a federal court for an order under the DMCA compelling Verizon Communications to reveal the name of a Kazaa subscriber accused of illegally trading hundreds of songs.

Oppenheim said that Congress had created a careful balance between privacy and copyright when drafting the DMCA, and Verizon's argument that the DMCA applies only to material hosted on its own servers is specious. "They're not engaged in private conduct," Oppenheim said about peer-to-peer users. "They're on public networks making available hundreds of music recordings to millions of other users. They're not doing anything in private. They don't have the right to anonymously commit a crime."

Sarah Deutsch, a Verizon vice president and associate general counsel, said: "This is just the RIAA's desperate attempt to divert public attention from the fact that they want unlimited access to private communications. They're trying to divert attention from some of the bad publicity that this case has garnered."

Deutsch said the RIAA had spurned a compromise proposal. "We offered that while the case was pending, we would forward cease-and-desist letters to our subscribers, at our own cost, without revealing our customers' identities," Deutsch said. "But RIAA refused."

Verizon has appealed last month's order to comply with the DMCA subpoena, but the U.S. Court of Appeals for the District of Columbia will not hear the case until U.S. District Judge John Bates decides, possibly in the next few weeks, to grant a stay or not.

In last month's 37-page decision, Bates ruled that Congress used "language that is clear" when crafting the DMCA. "Under Verizon's reading of the act, a significant amount of potential copyright infringement would be shielded from the subpoena authority of the DMCA," Bates wrote. "That would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish."

In another court filing Friday, the RIAA moved to strike a declaration last Thursday from Peter Swire, an Ohio State University law professor and former Clinton administration official, as irrelevant. "Mr. Swire's declaration boils down to nothing more than a twelve-paragraph legal brief, largely derived from speculation--most, if not all, of which directly contradicts this court's prior ruling," stated the RIAA in its legal filing. "While his 'sworn' statements may have a place in law review articles and policy debates, they have no place in a court of law."

If the RIAA prevails in this legal skirmish, it seems intent on pursuing DMCA subpoenas against other Internet providers. In a third court filing Friday, the trade group filed a statement from Jonathan Whitehead, an antipiracy vice president at the RIAA. Whitehead's statement said he sent Internet service provider EarthLink a DMCA subpoena on Wednesday for the identification of a single peer-to-peer user.

Verizon's response to the RIAA is due on Tuesday, and a hearing is scheduled for Feb. 13.