RIAA Settles 63 More Infringement Suits

On the eve of a Senate hearing on the subpoena power provisions of the Digital Millennium Copyright Act (DMCA), the Recording Industry Association of America (RIAA) says another 63 people have settled copyright infringement suits with the music industry. All were accused of illegally downloading more than 1,000 songs through peer-to-peer (P2P) networks.

The amount of the settlements were not disclosed by the RIAA, but an earlier settlement with the parents of a 12-year-old accused of illegally downloading music files was $2,000.

On Sept. 8, the RIAA filed 261 infringement suits with all of the names obtained through more than 1,600 DMCA subpoenas issued by the RIAA, which allow copyright holders to issue subpoenas to Internet service providers (ISPs) demanding the name, address and telephone numbers of ISP subscribers suspected of illegally downloading copyrighted material.

Unlike usual subpoenas, DMCA subpoenas can be filed prior to any charges of infringement, are not subject to a review by a judge, and requires no notice to, or opportunity to be heard by, the alleged infringer.

Monday’s announcement brings the total number of settlements to 64. Of the total settlements, according to the RIAA, 12 were pre-litigation, meaning individuals who were identified as offering significant amounts of music files and had their information subpoenaed from their ISP, but not had been sued.

Additionally, the RIAA said it received 838 affidavits for its “Clean Slate” program, which offers amnesty to P2P network users who voluntarily identify themselves and pledge to stop illegally sharing music on the Internet. The amnesty program has been attacked as misleading and in California, a lawsuit has been filed claiming the program is a deceptive trade practice.

One suit against a 66-year-old Boston grandmother, accused of downloading more than 2,000 songs, was dropped when it was disclosed her only computer is a Macintosh, which is incapable of running the P2P network software she was accused of using to pilfer such songs as rapper Trick Daddy’s “I’m a Thug.”

Another suit is being contested on the constitutionality of DMCA subpoenas. The attorney for a New York woman known only by her online name of “NYCfashiongirl,” claims the RIAA violated state and federal laws in securing her online name and IP address through its search P2P networks looking for possible music pirates.

Verizon and SBC are also challenging the constitutionality of the subpoenas. On Sept. 16, the three-panel U.S. Court of Appeals for the District of Columbia heard arguments in the case that both sides predict will eventually make its way to the Supreme Court.

While the courts are deliberating over the merits of the DMCA subpoena power, the U.S. Senate has shown interest in the issue, already holding one hearing and another scheduled for Tuesday. Sen. Norm Coleman (R.-Minn.), chairman of the Permanent Subcommittee on Investigations (PSI) that will hold the hearing, has expressed concern that nominal or unsuspecting downloaders may be targeted by the DMCA subpoenas and that fines of up to $150,000 per downloaded song may be out of proportion to the nature of the offense.

In addition, Sen. Sam Brownback (R.-Kan.) introduced legislation Sept. 16 directly aimed at curbing the RIAA’s use of the subpoenas. Brownback’s bill requires the owners of digital media products to file an actual case in a court of law in order to obtain the identifying information of an ISP’s subscriber.

Brownback’s bill received lukewarm support at a Sept. 17 hearing of the Senate Commerce Committee when Sen. Barbara Boxer (D.-Calif.) accused Verizon and SBC of “promoting illegal downloading” and engaging in “hypocritical behavior” by resisting the subpoenas issued by the RIAA.

In the House, Rep. Lamar Smith (R.-Tex.), chairman of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, recently said that chamber was not likely to hold any hearings on the issue.

RIAA President Cary Sherman chose to not comment on the legal aspects of Monday’s settlements, but, instead, focused on the debate his organization’s legal efforts to stop file swapping has sparked

“The music community’s efforts have triggered a national conversation — especially between parents and kids — about what’s legal and illegal when it comes to music on the Internet,” Sherman said. “In the end it will be decided not in the courtrooms, but at kitchen tables across the country. We are heartened by the response we have seen so far.”

Last year, the RIAA issued the first ever DMCA subpoenas to Verizon, seeking the names of several alleged infringers.

Verizon originally argued that the DMCA subpoena only applied in cases where an 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 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 P2P 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 appealed 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, which led to the RIAA filing its lawsuits.

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