MESSAGE
| DATE | 2003-09-16 |
| FROM | Ruben I Safir
|
| SUBJECT | Subject: [hangout] Who to do Business With - and it is not Alex Pilosoft
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SBC Won't Name Names in File-Sharing Cases By SETH SCHIESEL
As the recording industry pursues its lawsuits against those it says are
digital music pirates, SBC Communications has emerged as the only major
Internet service provider that has so far refused to identify computer
users whom the industry suspects of copyright infringement.
Since early July, major high-speed Internet providers ? including
BellSouth, Comcast, EarthLink, Time Warner Cable and Verizon ? have
complied with more than 1,000 subpoenas from the record industry's
lobbying arm, the Recording Industry Association of America, to turn
over the names of their customers who are otherwise known only by the
murky screen names and numeric Internet Protocol addresses used in
cyberspace.
SBC, the No. 2 regional phone company and a major local
telecommunications service provider in the Midwest and West, has
received about 300 such subpoenas and has refused to answer any of them.
It has stuck to that position even though Verizon, the biggest local
phone company ? which has most of its customers along the East Coast ?
lost a major lawsuit this year against the recording industry.
The contrast between SBC's stance and that of its peers illustrates how
Internet providers have been caught in the middle of the music
industry's pursuit of individual music swappers. Their range of
responses underscores the complexities of the legal landscape in this
new area of law, the mounting tensions between copyright enforcement and
privacy, and the limits of technology in finding cyberspace pirates.
In the Verizon case, a federal judge in Washington ruled that the
Digital Millennium Copyright Act of 1998 required the company to reveal
the identities of its customers even though the industry's subpoenas had
not been individually reviewed by a judge. Oral arguments in Verizon's
appeal are to be heard today by a federal court in Washington.
Most big Internet providers say that the original decision in the
Verizon case essentially validated the subpoenas that the recording
industry sent to other companies. SBC, however, has sued the recording
industry group in California.
"We are going to challenge every single one of these that they file
until we are told that our position is wrong as a matter of law," James
D. Ellis, general counsel for SBC, said yesterday in a telephone
interview.
Ever since the Telecommunications Act of 1996 remade the communications
industry, SBC has been considered by far the most legally aggressive of
the nation's major communications companies. Mr. Ellis is scheduled to
testify tomorrow about the copyright subpoenas before the Senate
Commerce Committee. With about three million high-speed data customers,
SBC is the nation's No. 1 provider of broadband Internet access using
digital subscriber line technology.
"Clearly, there are serious legal issues here, but there are also these
public policy privacy issues," Mr. Ellis said. "We have unlisted numbers
in this industry, and we've got a long heritage in which we have always
taken a harsh and hard rule on protecting the privacy of our customers'
information."
Recording industry officials see SBC's stance not as a matter of
principle over privacy but as a matter of dollars from downloading. They
assert that SBC is not concerned about copyright protection because the
company uses the lure of music piracy to attract high-speed Internet
customers.
A record industry official pointed to a past print advertisement from
SBC's Pacific Bell unit that read, in part: "Download all the music you
like. And all the music you sort of, kind of, maybe even a little bit
like. Go MP3 crazy. Try new music. Build a song library. Whatever."
"Sure beats going to the record store," the advertisement concluded.
A spokesman for the record industry group said the ad had appeared in
The Los Angeles Times as recently as January 2002.
Matthew J. Oppenheim, the trade group's senior vice president for
business and legal affairs, said the ad was important because it
suggested a strong motive for SBC's position. "SBC believes that free
music drives its business," he said. "That's the only explanation for
why they would relitigate issues that have been resolved."
An SBC spokesman, Selim Bingol, said the advertisement was irrelevant.
"It's ludicrous to suggest that an ad that has not appeared for many
months has anything to do with today's debate," he said. "We are
opposing these subpoenas because under the R.I.A.A.'s interpretation,
they are a threat to consumer privacy and safety."
The wave of subpoenas that led to last week's lawsuits began about 10
weeks after the judge in the Verizon case issued his final ruling in
April. On July 7, the Monday after the Independence Day weekend, lawyers
at Internet providers returned to their offices to find a blizzard of
legal requests from the recording association. Comcast, the nation's
leading provider of high-speed Internet access to homes, which it
supplies through its cable system, received more than 100 subpoenas in
the first two days after the holiday.
"It really was a fire drill," said Gerard J. Lewis, Comcast's chief
privacy officer. At Comcast and other companies, the first subpoenas
were dated July 3, the last day before the holiday weekend, and they
required the companies to provide the information within seven days.
That meant that Internet providers that thought the subpoenas were legal
had only two or three days to comply.
Now, according to lawyers at several major Internet companies, the
recording industry has agreed to a looser schedule: 10 business days
from when the Internet provider receives the subpoena.
The digital copyright law does not require anyone to notify consumers
that their personal information has been subpoenaed. It appears,
however, that most major Internet providers ? including Comcast, Time
Warner Cable and Verizon ? made an effort to send letters to many
customers who were the subjects of subpoenas, notifying them that unless
the customer signaled legal action, the information would be provided to
the recording industry.
According to executives at several major Internet providers, only the
barest minimum of customers took any steps to block the disclosure of
their information. Of the 261 individuals sued by the industry so far,
however, a number have said they never received any notice from their
Internet provider.
Tracking down the numeric Internet protocol, or I.P., address employed
by any given user of a file-sharing network is relatively easy. In
essence, the industry focused on users who appeared to be making large
numbers of music files available to others on file-swapping networks
like KaZaA and Morpheus. Industry investigators noted the I.P. address
of the user and the exact time at which the user was making files
available.
The recording investigators could then determine which Internet provider
assigned the specific I.P. address. The subpoenas included both the I.P.
address and the time so that the Internet provider could see which of
its customers was using that address at that particular moment. With
many consumer Internet services, the I.P. address for a user can change
every time the computer is turned off and turned back on, so the exact
time is a critical tool for matching I.P. addresses and users.
The length of time that Internet providers maintain logs of users,
addresses and times varies. Comcast and Time Warner Cable, for instance,
generally keep those logs for only 30 days. That means that if those
companies receive a copyright subpoena with an I.P. address and time
more than a month old, they may be unable to answer the request.
Verizon, by contrast, generally keeps its I.P. logs indefinitely.
"Verizon keeps that sort of information for traffic management and to
help law enforcement," said Sarah Deutsch, a Verizon vice president and
associate general counsel.
Mr. Oppenheim from the recording industry association said he was
generally pleased with the level of cooperation his organization has
received. Nonetheless, executives at several Internet providers that are
cooperating with the association expressed privately some discomfort
with the process.
"We fully understand that copyright protection is a legitimate goal,"
said one executive at a major Internet provider. "That being said, it
doesn't seem like the consumers' privacy interest is really being
balanced out here in this process." -- __________________________
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