RIAA wins battle to ID Kazaa user

A federal judge orders Verizon to disclose the identity of an alleged peer-to-peer pirate in a decision that could make it easier for the music industry to crack down on file swapping.

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
5 min read
A federal judge on Tuesday ordered Verizon Communications to disclose the identity of an alleged peer-to-peer pirate in a legal decision that could make it easier for the music industry to crack down on file swapping.

In what is widely viewed as a test case, U.S. District Judge John Bates said the wording of the 1998 Digital Millennium Copyright Act (DMCA) requires Verizon to give the Recording Industry Association of America (RIAA) the name of a Kazaa subscriber who allegedly has shared hundreds of music recordings. Bates said, "The court disagrees with Verizon's strained reading of the act," and ordered Verizon to comply with the DMCA request from the record labels.

The dispute is not about whether the RIAA will be able to force Verizon to reveal the identity of a suspected copyright infringer, but about what legal mechanism copyright holders may use. The RIAA would prefer to rely on the DMCA's turbocharged procedures because they are cheaper and faster than other methods, but Verizon and civil liberties groups have said the DMCA does not apply and that it does not adequately protect privacy.

Bates rejected those arguments, saying in a 37-page decision 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."

This case represents the entertainment industry's latest legal assault on peer-to-peer piracy. If its invocation of the DMCA is upheld on appeal, music industry investigators would have the power to identify hundreds or thousands of music pirates at a time without filing a lawsuit first. That could presage filing lawsuits against individual copyright infringers, a legal club the RIAA has been hesitant to wield so far.

"We appreciate the court's decision, which validates our interpretation of the law," RIAA President Cary Sherman said in a statement. "The illegal distribution of music on the Internet is a serious issue for musicians, songwriters and other copyright owners, and the record companies have made great strides in addressing this problem by educating consumers and providing them with legitimate alternatives."

Verizon plans to appeal the decision to the U.S. Court of Appeals for the D.C. Circuit, said Sarah Deutsch, the company's vice president and associate general counsel. "This is not a case in which we believe the court was right," Deutsch said. "This kind of decision could open the floodgates to copyright holders, sending numerous subpoenas to Internet providers seeking identities of subscribers."

The details
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.

When challenging the subpoena, Verizon said that section 512 does not apply to ISPs that are merely conduits for peer-to-peer users and which are not hosting potentially infringing material on their own servers. Bates rejected that argument, saying that "the court concludes that the subpoena authority of section 512 applies to all service providers within the coverage of the act, including Verizon."

A dozen consumer and privacy groups in August filed an amicus brief siding with Verizon and arguing that section 512 of the DMCA is unconstitutional. Their brief said the law violated Americans' rights to be anonymous online: "Purported copyright owners should not have the right to violate protected, anonymous speech with what amounts to a single snap of the fingers."

Megan Gray, an attorney who wrote the brief on behalf of groups including the Electronic Frontier Foundation, Consumer Alert, the Electronic Privacy Information Center and the National Consumers League, said Tuesday that she was not surprised by the decision. "I was disappointed that the court did not exert the time and energy to more thoroughly analyze the constitutional issues, which from our perspective were the crux of the case," Gray said.

Bates said he did not consider the First Amendment claim since Verizon had not argued that point, but predicted that even if he had, the outcome would have been the same. "Neither Verizon nor any amici has suggested that anonymously downloading more than 600 songs from the Internet without authorization is protected expression under the First Amendment," Bates wrote. "To be sure, this is not a case where Verizon's customer is anonymously using the Internet to distribute speeches of Lenin, Biblical passages, educational materials, or criticisms of the government--situations in which assertions of First Amendment rights more plausibly could be made."

"Verizon didn't bring an explicit challenge to the DMCA because we were one of the parties that negotiated it," Verizon's Deutsch said. "What we did tell the judge was that there were constitutional issues that required the court to construe the law narrowly."

In a signal that last week's ruling by the Supreme Court in a copyright-extension case will reverberate in Internet lawsuits, Bates said the Supreme Court's decision stressing "the wisdom of Congress' action" isn't within his power "to second guess."

A second pro-Verizon amicus brief filed by the U.S. Internet Industry Association, Yahoo and other groups said that the RIAA was unfairly trying to shift the burden of copyright enforcement to ISPs. "Can anyone doubt that RIAA intends this as a test case?" the brief said. "If this subpoena is enforced, others will soon follow. That will impose substantial costs both for the large ISPs, who may receive thousands of subpoenas, and for the smaller ISPs, for which the burden of even an isolated subpoena may prove overwhelming."

The Motion Picture Association of America (MPAA) had backed the RIAA. In its own amicus brief, the group said: "Like the sound recordings implicated by the RIAA's subpoena, the motion pictures produced and distributed by MPAA members are persistently subject to theft by Internet pirates. No tools are more critical in combating this digital piracy than the protections Congress enacted in the Digital Millennium Copyright Act."