Tuesday, May 13, 2008
The latest Verizon ruling came in a lawsuit that began last summer, when the RIAA obtained what's known as an "information subpoena" to force Verizon to divulge the names of customers the RIAA says were making hundreds of songs available on Kazaa. The information subpoena was obtained under a disputed section of the DMCA; according to the RIAA, the law allows copyright holders to present an Internet address to a court and get, without any judicial review of the claim, the name and physical address associated with that Internet address. Verizon and many other ISPs -- except for AOL -- say that the RIAA must go through the process of filing a lawsuit against the anonymous file trader before it can get any information about the person.
So far, Verizon has lost at every stage in the case; its latest bid was an appeal for the court to let it keep the names confidential until the case was fully resolved later this year. But the court said that Verizon has "not shown so great a likelihood of success on the merits as to outweigh the clearly greater harm that would accrue to [the RIAA] if the stay were granted."
Sarah Deutsch, Verizon's attorney, says that "Verizon intends to comply with the subpoenas," and it expects to receive many more such requests in the near future. "They can hand us more subpoenas," she says of the RIAA, "and they can send more subpoenas to other service providers. And they've announced to the court that they intend to send a very significant number of subpoenas."
What makes this ruling so important is that it lifts, for the first time, the veil of anonymity that so far has shrouded the world of online file trading. In its fight against MP3 trading, the recording industry has been rather successful at shutting down some file-trading systems -- think of Napster and Audiogalaxy -- but those efforts have done remarkably little to deter individuals from trading music online; most people have continued sharing in the naive assumption that the recording industry couldn't, or wouldn't, go after them personally.
Well, now, after the Verizon ruling, the industry can go after you. And maybe it will. Recently, the industry has shown no qualms about pursuing individuals it suspects of copyright infringement. In April, the RIAA sued four students who ran campus trading systems at their colleges. The RIAA alleged violations that could have landed the students in tens of millions of dollars in debt -- a sum so outrageous they all decided to settle for thousands.
On his Web site, Jesse Jordan, one of the four students, seemed quite upset by the whole episode. "I am to pay the RIAA $12,000. In other words, I am to give them the balance of my bank account -- money I have worked over 3 years to save up," he wrote. "This money was for me to spend on books and other costs that come up from day to day. If the RIAA thinks that this is only a minor setback for me, they are greatly mistaken. I hope that they enjoy the new fax machine (or whatever they plan to spend it on), because the artists they supposedly represent will certainly never see a dime of it."
Jordan is lucky; his Web appeal struck a chord with surfers, and he's received, so far, more than $9,000 in donations. Interestingly, he doesn't seem deterred by his ordeal. He writes on his site that he is looking into bringing back his campuswide trading system, because "it would be a real tragedy to allow the RIAA to stifle the advancement of legitimate peer-to-peer file sharing services. I will personally make any effort possible to ensure that this repression does not occur ... If the RIAA thinks that these lawsuits will curb music piracy, they had better think again. What do you think?"
It's a good question -- will most file traders respond so cockily to a lawsuit from the RIAA? Probably not. If the RIAA catches you trading copyrighted music online, remember, you won't have much of a defense; attorneys have long debated whether systems like Napster are illegal, but on the question of whether an individual trader's actions violate the law, there is pretty broad agreement: If you upload or download a copyrighted music file, you are doing something illegal. If you're caught, it would make economic sense to settle the case. But if there are a few, or a few dozen, high-profile settlements with the RIAA resulting in kids' getting stuck with thousands of dollars in fines, won't people conclude that it makes even more economic sense to go to the store and buy some CDs?
According to people familiar with the process, Sen. Brownback's bill, which would curb the RIAA's ability to pursue individual file traders, was initially going to be introduced before the Memorial Day congressional break -- but Brownback has hit some snags in looking for a Democrat to sign on to the idea. Mike Godwin, an attorney at Public Knowledge, a consumer group that helped in the drafting of the bill, says that he doesn't think this is a major stumbling block for the bill. "It's just part of the process," he says. "Once they had a bill they thought was ready for prime time they consulted with the different stakeholders and with chairman McCain" -- Sen. John McCain, the Arizona Republican who heads the Commerce Committee -- "who told them that if you want to make this process go smoothly you need a minority party sponsor. So they're shopping around for one now." Godwin didn't know when the bill would be introduced.
It is possible, though, that a Democratic sponsor may be hard to find. "For better or for worse," says Fred von Lohmann, "the entertainment industry is a longtime source of campaign contributions to the Democrats, so it's hard to rally a Democrat to come out and support a bill that Hollywood doesn't approve of."
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