- The Washington Times - Friday, December 19, 2003

Internet service providers don’t have to reveal the names of customers the music industry suspects of illegally swapping music files, a federal appeals court said yesterday.

The ruling overturns a district court decision that gave the recording industry broad power to stop file sharing by enforcing a statute in a 1998 copyright law.

Verizon Communications Inc., which sued the recording industry over its enforcement of the copyright law, said the ruling by the U.S. Court of Appeals for the District of Columbia will protect the privacy of consumers by requiring judicial review before a subscriber’s name is revealed.

“We stood up for the consumer,” said Verizon Vice President and corporate attorney Sarah Deutsch.

The decision will change the legal strategy by the recording industry, but it won’t end the aggressive campaign that has led it to file lawsuits against 382 persons since September.

“This is a disappointing procedural decision, but it only changes the process by which we will file lawsuits against online infringers. This decision in no way changes our right to sue,” said Cary Sherman, president of the Recording Industry Association of America, the music industry’s lobbying arm.

Some Internet service providers have complied with the recording industry’s request to hand over names of suspected file sharers. Verizon was the first to challenge the industry’s use of a subpoena provision in the 1998 Digital Millennium Copyright Act to identify people who use file-sharing software such as Kazaa to distribute song files.

A statute in the 1998 law says copyright holders do not need a judge’s signature to force Internet service providers to turn over the names of subscribers.

The appeals court said Verizon does not have to identify its subscribers because the company is merely a conduit for individuals who exchange music files.

Andrew McBride, a D.C. lawyer at Wiley, Rein and Fielding LLP who represented Verizon in its appeal, argued in September that the company can neither remove nor disable access to music files because they aren’t stored on Verizon’s servers.

“We agree that … subpoena power … applies only to ISPs engaged in storing copyrighted material and not to those engaged solely in transmitting it on behalf of others,” Chief Judge Douglas Ginsburg wrote on behalf of the three-judge panel.

The judge wrote that the appeals court sympathizes with the recording industry’s concern over copyright infringement. But Congress didn’t anticipate the recording industry would need to use the subpoena provision to stop file sharing because it didn’t foresee peer-to-peer technology.

Peer-to-peer technology allows Internet users to find and retrieve files on one another’s computers.

“It is not the province of the courts … to rewrite the [law] in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries,” the judge wrote.

Rep. Rick Boucher, Virginia Democrat, said lawmakers never intended to allow copyright holders to get information about suspected file sharers just by getting a subpoena from a clerk.

The appeals court decision will add a new level of judicial scrutiny to copyright infringement claims.

The recording industry still can get information about subscribers, but only after filing a lawsuit and proving a person is sharing music files, said Peter Swire, an Ohio State University law professor who also served as Verizon’s expert on privacy issues during its case before the district court.

The industry will have to file “John Doe lawsuits” to obtain names of people sharing song files. Instead of filing suit against named defendants, the industry will provide the court with the Internet addresses of file sharers, then make its case for obtaining their identities and suing them for copyright infringement.

“With John Doe lawsuits, they can still win, but they won’t find out a person’s name, address and phone number until a judge decides there’s merit,” Mr. Swire said.

That should prevent lawsuits from being filed against people who haven’t shared music files, he said. The recording industry dismissed one lawsuit it filed mistakenly against a Boston grandmother after determining she didn’t swap song files.

The decision yesterday by the appeals court is unlikely to affect the 382 lawsuits filed since Sept. 8, when the music industry began a dragnet to stop music piracy and reverse a three-year slump in sales of compact discs.

This week the recording industry sent letters to the 50 largest U.S. Internet service providers asking them to warn subscribers that file sharing is illegal.

The industry is proposing to send Internet addresses of people it suspects of swapping song files to Internet service providers, which then would send warnings to the subscribers without divulging their names to the music industry.

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