FAQ: How the decision will affect file swappers

What is the impact for peer-to-peer fans of a court decision that knocks back the recording industry's legal strategy for tracking down and suing alleged file swappers?

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
3 min read
Q: What does Friday's decision mean for me, if I'm worried about getting sued by the recording industry for using a peer-to-peer network?
A: Friday's decision does not affect whether it's legal to upload or download music. That doesn't change. But it does make it more difficult for the record labels to unmask people suspected of running afoul of copyright laws.

I've heard of the possibility of "John Doe" lawsuits. What are those?
Until now, the RIAA has used an expedited subpoena process provided for under copyright law, which it says allows it to force ISPs to hand over customer names without a judge's approval or even a lawsuit. If Friday's decision stands, the record industry will likely be compelled to take the more time-consuming and costly step of filing "John Doe" lawsuits against people whose identities are not yet known. The person would eventually be unmasked during court proceedings.

This option has a possible downside for the RIAA, however. Currently, the trade association knows the identity of the people it names as defendants. By switching to a process in which anonymous people are sued, the RIAA runs the risk of making an embarrassing misstep--by suing a son or daughter of a record label executive or of a U.S. senator, for example.

How does this ruling affect me, if I'm already being sued by the RIAA?
If you're already being sued, it's not going to help you. The trade group's lawyers know who you are, and those lawsuits can go forward, said Paul Levy, an attorney at Public Citizen who wrote a brief opposing the RIAA in Friday's case. "If they've already been identified, it seems to me that they are just as much subject to suit for copyright violation as they were before," he said.

On the other hand, if the RIAA has sent your Internet service provider (ISP) a subpoena demanding your name, and your ISP has not responded, the provider can probably refuse to divulge your identity.

I work at an Internet service provider. What happens if I get a subpoena demanding the identity of one of my users who's allegedly violating copyright law?
The RIAA has been using a Washington, D.C., federal court to send subpoenas to ISPs all over the United States. It won't be able to continue to send out these subpoenas from that court any more. If you receive or already have received such a subpoena, you probably don't have to comply with it.

But the RIAA has a second option--which is where things get complicated. Its attorneys can use any other court to send subpoenas. If that happens, Friday's decision would not be binding, although other judges could decide to follow it, if they wish.

"To date, they've filed everything in D.C., because they had a great decision," Public Citizen's Levy said, referring to an earlier ruling that is now reversed. "Now I think you'll see them shopping in other circuits, where they can be more successful."

Will this ruling allow people who've settled to get their money back?
Probably not.

How long does it take for this ruling to take effect?
It's effective immediately.

What happens next? Can the RIAA appeal?
Yes, the RIAA can appeal. It has two choices.

It has 45 days to ask the full Washington, D.C. Circuit Court of Appeals to hear its appeal--but that's probably a long shot. The chief judge of that appeals court was one of the three jurists on the panel that unanimously ruled against the RIAA on Friday.

The record labels' second choice is to ask the U.S. Supreme Court to hear their appeal, a request that must be filed within 90 days. The high court is under no obligation to take the case. If the Supreme Court does accept an appeal from the RIAA, its eventual ruling would set a national standard one way or another.

If the RIAA eventually loses its battle to wield the subpoena power in the Digital Millennium Copyright Act (DMCA) against peer-to-peer network users, its lobbyists will likely turn to Congress for help. Friday's decision was very narrow: All it said is that the current wording of the DMCA means that it cannot be used against peer-to-peer users who commit infringements. Congress could change that.