‘Nycfashiongirl’ Appeals DMCA Subpoena Request

A New York woman suspected of illegally downloading copyrighted music has gone to court to block the Recording Industry Association of America’s (RIAA) attempt to obtain her name through a subpoena issued under a controversial provision of the Digital Millennium Copyright Act (DMCA). The RIAA claims the woman, whose online name is “nycfashiongirl,” illegally downloaded more than 900 songs and at least one feature-length movie.

Nycfashiongirl attorney Glenn Peterson said he filed a motion in the district court in Washington, D.C., Thursday to retain her anonymity, challenging the constitutionality of the DMCA subpoena. The attorney claims the RIAA violated state and federal laws in securing her online name and IP address through its search of peer-to-peer networks looking for possible music pirates.

Unlike a usual subpoena, which requires some underlying claim of a possible crime and must be signed by a judge or magistrate, under the DMCA a subpoena can be issued by a court clerk who only verifies a form has been properly filled out. The DMCA subpoena compels an Internet service provider (ISP) to turn over the name, telephone number and address of a subscriber suspected of copyright violations.

The subpoenas require no notice to, or opportunity to be heard by, the alleged infringer.

Since winning a June court case against Verizon over the validity of the subpoenas, the RIAA has issued more than a thousand of them seeking names of people the music trade group suspects of downloading copyrighted music. Verizon is appealing the decision but, in the interim, has been ordered by the court to turn over names sought by the RIAA.

Peterson also asked Verizon not to turn over the woman’s name to the RIAA. Sarah Deutsch, vice president and associate general counsel for Verizon, said the telecom giant would comply with the request.

Deutsch says the RIAA is engaging in a fishing expedition in order to obtain as many names as possible before the appeals court ruling, currently set for Sept. 16, and that the music industry is “trampling on the privacy rights” of thousands of ISP customers.

“The court’s decision has troubling ramifications for consumers, service providers and the growth of the Internet. It opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts,” Deutsch said after the initial ruling. “This case will have a chilling effect on private communications, such as e-mail, surfing the Internet or the sending of files between private parties.”

Other ISPs are now joining Verizon in the legal fray. In August, Pacific Bell Internet Services, a subsidiary of SBC Communications, filed a lawsuit against the RIAA after it received 200 subpoenas demanding the names, addresses and telephone numbers of the ISP’s subscribers who the RIAA claims are engaging in copyright infringement.

The RIAA didn’t respond to a telephone request by internetnews for comment. But RIAA President Cary Sherman said after the June ruling, “A federal district court has again affirmed that the law which provides copyright holders with a process to identify infringers is both Constitutional and appropriate.”

Sherman added, “If users of pirate peer-to-peer sites don’t want to be identified, they should not break the law by illegally distributing music. Today’s decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability.”

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