An Appealing Case: RIAA, Verizon Head Back to Court

The Recording Industry Association of America (RIAA) and Verizon return to court Tuesday when the U.S. Court of Appeals for the District of Columbia hears Verizon’s appeal of a January ruling requiring the telecom giant to comply with a subpoena request by the RIAA to reveal the identities of customers who allegedly infringed copyrights using peer-to-peer (P2P) file-sharing networks.

The subpoena was issued through a provision of the 1998 DMCA that allows copyright holders to issue subpoenas that have not been reviewed by a judge and requires no notice to, or opportunity to be heard by, the alleged infringer.

Unlike a usual subpoena, which requires some underlying claim of a crime, under the DMCA a subpoena can be issued by a court clerk who only checks to make sure the subpoena form is properly filled out.

Verizon originally argued that the DMCA subpoena only applied in cases where an Internet service provider (ISP) stored the copyrighted material on its servers. Because people using P2P networks store the material on their own hard drives, Verizon said it was exempt from the DMCA subpoena.

Since then, Verizon has expanded its case to the actual constitutionality of the DMCA subpoena, privacy rights violations, the potential dangers of the subpoena being misused by non-copyright holders and even the future growth on the Internet.

The RIAA contends the DMCA subpoena is perfectly legal and was agreed to by Internet service proviers (ISPs) during the 1998 negotiations over the DMCA. One of the central issues then was the liability of ISPs for the possible copyright infringements of their customers.

The DMCA gives ISPs liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers’ systems, including complying with an expedited subpoena process for copyright owners who want to pursue legal action against infringers. Neither side ever anticipated the development and explosive growth of peer-to-peer networks.

In January, a U.S. District Court ruled in the RIAA’s favor and ordered Verizon to turn over the names. Verizon then sought a stay in order to protect the names while the company appeals the decision. In April, U.S. District Judge John Bates rejected Verizon’s stay request but granted a temporary stay until the Court of Appeals could decide the matter, which ruled in June that Verizon had to turn over the names.

Since then, the RIAA issued more 1,500 subpoenas. Those subpoenas led to 261 civil lawsuits being filed by the RIAA last week against alleged copyright infringers.

Both sides agree the case is probably heading to the Supreme Court.

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