The RIAA analyst who logged in to Kazaa last July 15 discovered that the Verizon subscriber had 666 music files available for others to download, including songs by "Billie Holiday, the Beatles, the Who, Pete Seeger, James Taylor, Bob Marley, Johnny Cash, Stevie Wonder, Billy Joel, Barry White, Aerosmith, Janet Jackson, Madonna, U2, Jennifer Lopez, 'N Sync, Britney Spears, and countless others," the RIAA says.

The person was obviously a music lover and may have been one of the record industry's best customers. But the RIAA considered this person a significant threat to its business, guilty of "theft ... on a massive scale." To make matters worse, the crook was anonymous; the person's age, sex, phone number and address were unknown to everyone outside Verizon's billing department. All that the record industry had on the alleged thief was an eleven-digit Internet protocol address, 141.158.104.94.

When the RIAA asked Verizon for the identity of the user at that IP address, Verizon declined to release it. The trade group filed suit against Verizon, citing the provisions of Section 512h of the DMCA.

Section 512h of the DMCA is just a bit more than 500 words in length and about as easy to decipher as an ancient hieroglyphic scroll. Legal experts are fond of saying that the DMCA was conceived as a grand bargain between ISPs and copyright holders -- the law freed the ISPs from liability for their users' copyright violations as long as the companies cooperated with media firms' anti-piracy efforts. Section 512h reflects the muddle of that grand bargain, and everyone seems to have a different idea of what the passage means.

The recording industry says that Section 512h allows copyright holders to obtain a subpoena ordering an ISP to identify a subscriber accused of infringing upon a copyright. To be granted such a subpoena, a media firm must draw up a list identifying the works in question, must provide "a statement of good faith" testifying that it believes infringement has taken place, and must swear "under penalty of perjury" that it wants the information only to protect its copyright. The copyright owner would present these documents to the clerk of the court, not to a judge; the clerk would check to see that the documents are in order and then issue the subpoena. Neither the clerk nor the ISP would initiate any investigation to determine the accuracy of the claims made by the copyright owner.

Since last July, the RIAA has served other ISPs besides Verizon with 512h subpoenas, and some of them, including EarthLink, have also rejected the requests. But according to Nicholas Graham, a spokesman for AOL, the RIAA has not recently sent such a subpoena to AOL -- a company whose member base is at least 10 times the size of Verizon's and probably includes at least one or two, if not 1 or 2 million, peer-to-peer file traders. Asked what AOL would do if the company received a 512h request for member information right now, Graham declined to answer, saying that it would require him to comment on a hypothetical situation closely related to an ongoing legal case.

Did the recording industry purposefully not serve AOL with a 512h subpoena because of its ties to content companies? The RIAA says no -- in fact, the group says, AOL has been served with such requests for subscriber information in the past, and it has complied. "We have sent AOL these subpoenas and they have responded," said Matthew Oppenheim, the RIAA's vice president of business and legal affairs. (AOL's Graham did not confirm or deny this charge.)

Determining exactly what AOL is really doing with RIAA subpoenas -- if it has actually been on the receiving end of them -- is critical, because other ISPs, including Verizon, read section 512h very differently from the RIAA. Verizon says that the law requires ISPs to turn over a subscriber's name and address only under one condition -- if the subscriber has stored copyright-infringing material on the ISP's computers. For example, if a Verizon subscriber saves an illegal copy of an 'N Sync song on a Web site hosted by Verizon, the company would have to tell the record labels how to contact that subscriber; but if the material is just on the user's computer, as it is for people who use peer-to-peer services, Verizon says it has no obligation to disclose any information at all.

"I was one of the 10 industry representatives who was there to draw up this law," said Sarah Deutsch, associate general counsel for Verizon. "There were five people from the telecom sector and five from the content sector -- and it was clearly our interpretation that the content would have to be on our network. We agreed to a process called 'notice and takedown' for material that was on the network." Deutsch says that the use of the word "takedown" in the DMCA is important, as it implies that the content in question must be on an ISP's system to trigger the law -- if the material is beyond the ISP's control, she argues, how can the company take it down?

The RIAA says Verizon's position is illogical. "There are so many ways it doesn't make sense," Oppenheim says. Why, he asks, would Congress have decided to protect online content in one location -- on the ISP's network -- and not in another? And how did Congress expect the copyright holder to determine where the content was being hosted?

The DMCA doesn't care where the content is being hosted, Oppenheim says. Whenever a copyright holder sees media of its own that appears to have been illegally copied, whether on the Web, on a peer-to-peer service, an e-mail message or some other digital form, the DMCA allows the content company to find out who did it. Oppenheim says that the law is straightforward, and he rejects the idea that the RIAA's case against Verizon is a "test" of any kind. Since the passage of the DMCA, the RIAA has obtained 96 such subpoenas, Oppenheim said, and Verizon was the first ISP to reject one. "Before that, nobody ever objected," he said, "and the only reason it's now a test case is because Verizon thought there was a question."

In documents filed in the case, the RIAA points out that Verizon may have only recently come to that position. On several occasions in 2000, the RIAA asked Verizon to take down infringing material from its network -- and nine times, the company said that the content in question was not on Verizon's network, but that the company would be happy to provide the RIAA with subscriber information if the RIAA obtained a subpoena under the DMCA's 512h.

"And that's not surprising," says Oppenheim, "because everybody knew 512h allowed that. So you have to ask: Why would Verizon suddenly change their view? And, well, I have my answers. They've got an enormous base of infringers. Their view is there would be an economic hit if they started to allow this."

Nobody has a larger number of subscribers than AOL, or would be likely to take a bigger hit if suddenly forced to crack down against every instance of file-trading that an AOL subscriber engages in. But, at the same time, no company has more media properties at risk from file-trading than AOL Time Warner.

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