RIAA Lose a Valuable Tool in the Fight Against Piracy as Verizon Win Appeal

February 2004

Record Labels, Music Publishers, Internet

In a substantial setback for industry efforts to stop music piracy, a federal appeals court ruled yesterday that the Recording Industry Association of America (RIAA) cannot force Internet service providers to reveal the names and mailing addresses of alleged music swappers on their networks. By overturning a lower court’s decision the U.S. Court of Appeals for the District of Columbia Circuit eliminated a powerful tool used by the RIAA under the Digital Millennium Copyright Act of 1998 to learn the identities of computer users and sue them for downloading music. A number of educational institutions and Internet service providers (ISPs) had fought the lower courts decision after telecomms operator Verizon was forced to hand over details of ‘chronic’ music file downloaders to the RIAA. While the ruling does not make music piracy legal, it does rein in the recording industry’s ability to pursue file swappers without court oversight. The lower court decision had permitted music companies to force Internet providers to turn over the names of suspected music pirates by simply requesting a subpoena from any U.S. District Court clerk’s office, without a judge’s signature required.
Verizon filed a number of defences including the “common carrier” defence. Here the company argued that it should not have to police its subscribers because it merely provides the ‘pipe’ through which data flows and this data can be both legal and illegal. The District Court of Appeals agreed with Verizon that it should not have to suffer the consequences of acting solely as a conduit for communications whose content it did not and could not control. The intent of the clause being used by the RIAA, Verizon argued, was to go after ISPs or other networks such as the original Napster file-sharing service that stored infringing material on their own servers, and not networks that merely allowed users to connect to each other. The court highlighted Section 512a of the DMCA which protects ISPs in a case of copyright infringement by reason of the ISP transmitting, routing, or providing connections for infringing material ,where (inter-alia) the transmission is initiated and directed by the subscriber. Thus Verizon itself was not committing an offence, although its subscribers were. Moreover, Verizon couldn’t remove or disable access to infringing material as the infringing material was not stored on Verizon’s servers. The case shows a weakness in the DCMA which is perhaps understandable given that file swapping was not a big problem in 1998 when the Act was passed. However, the court so no reason itself to rewrite the Act to cover new and unforeseen circumstances.
The ruling will place the burden on the RIAA to prove there is enough evidence before naming any individual in a lawsuit and obtaining subpoenas. The RIAA will almost certainly appeal this decision to the U.S. Supreme Court.

The Electronic Frontier Foundation (EFF) COMMENT : In a victory for Verizon and the privacy of Internet users, the D.C. Circuit Court on Friday dismissed the recording industry’s subpoenas for user identities. The Recording Industry Association of America (RIAA) has filed nearly 3,000 subpoenas in Washington, D.C., as a prelude to lawsuits against 382 alleged filesharers. The court ruled that those subpoenas are not authorised by the Digital Millennium Copyright Act (DMCA). “Internet users are the winners in the Verizon case,” said EFF Staff Attorney Wendy Seltzer. “The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan.”
See: http://www.eff.org

For the full media advisory : http://www.eff.org/Cases/RIAA_v_Verizon/20031219_eff_pr.php
D.C. Circuit Court ruling in RIAA v Verizon : http://www.eff.org/Cases/RIAA_v_Verizon/opinion-20031219.pdf
RIAA v Verizon case archive : http://www.eff.org/Cases/RIAA_v_Verizon
And see Law Updates October 2003 – “RIAA Launches First Actions Against US Individuals”; Law Updates July 2003 –“Verizon Forced to Hand Over Subscriber Details” and Law Updates June 2003 – “Verizon Motion to Quash Fails”

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