MESSAGE
| DATE | 2003-09-16 |
| FROM | Ruben I Safir
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| SUBJECT | Subject: [hangout] ISP Privacy in apealet court
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In Court, Verizon Challenges Music Industry's Subpoenas
By AMY HARMON
WASHINGTON, Sept. 16 ? As Congress intensifies its scrutiny of the special subpoenas that the recording industry is using to track down and sue people who share music over the Internet, a federal appeals court panel questioned today whether legislators had intended the subpoenas to be used in such a way.
But the three-judge panel of the United States Court of Appeals for the District of Columbia also had tough questions for Verizon, which is challenging the record industry's interpretation of a 1998 law that allows copyright holders to force Internet service providers to identify customers suspected of copyright infringement.
"You make a lot of money off of the piracy, don't you?" Judge John Roberts asked Verizon's lawyer, Andrew McBride, referring to the high-speed Internet connections favored by people who download music and video. "People engaged in that activity use the more expensive services that you offer."
"That is a canard," Mr. McBride replied, noting that the company makes money when consumers buy the legal music services it offers.
In an effort to stem the widespread copying of music over the Internet, the Recording Industry Association of America sued 261 computer users last week, and it plans to sue hundreds more. Several of those sued have expressed dismay that their Internet providers turned over information about them without their permission.
The association is the first to apply the subpoena provision in the Digital Millennium Copyright Act of 1998 to identify people who make files available for others to copy from their personal computers using file-sharing software like KaZaA. Under the statute, copyright holders do not need a judge's signature to compel Internet service providers to turn over the names of subscribers.
The appeals court decision, expected later this fall, could have important consequences for the music industry's antipiracy campaign. Cary Sherman, president of the recording industry group, said today that using the subpoenas made it easier and less expensive for the organization to file so many lawsuits because it could consolidate the lawsuits in geographic regions under local lawyers hired for that purpose.
Verizon contends that the law was meant to apply only to material that subscribers post on Web sites that reside on computers controlled by Internet providers. The rise of peer-to-peer technology, which lets Internet users find and retrieve files on one another's computers, the company says, was not foreseen by Congress when it passed the law.
Verizon is also challenging the constitutionality of the law, arguing that if it does allow the subpoenas to be used in this way, it violates subscribers' rights to privacy and due process. Judge John D. Bates of Federal District Court in Washington ruled against the company earlier this year, forcing it to turn over the names and addresses of at least four Internet subscribers.
Sarah B. Deutsch, a vice president and lawyer for Verizon, said the company had received 200 subpoenas since then. It is complying with all of them, except for one in which a New York woman has challenged the recording industry's use of the subpoenas to identify her.
The hearing came as two Congressional committees prepare to examine the 1998 statute more closely. On Wednesday, the Senate Commerce Committee will hear testimony about copyright protection and consumer privacy from lawyers for Verizon and SBC, which has filed a separate challenge to the subpoenas in federal court in San Francisco. John Rose, executive vice president of EMI, and Mr. Sherman of the recording industry trade group will also testify.
Senator Norm Coleman, a Minnesota Republican, has scheduled a Sept. 30 hearing of the Permanent Subcommittee on Investigations that will address privacy issues as well as the broader effect of technology on copyright enforcement.
And Senator Sam Brownback, a Kansas Republican, introduced a bill today to protect Internet providers from the controversial subpoenas. His proposal would block subpoenas except in pending civil lawsuits or in cases where unauthorized copies were stored on Web sites.
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