With a court victory in its pocket but no names in hand, the Recording Industry Association of America (RIAA) is ratcheting up the legal pressure on Verizon to provide the identity of alleged music pirates operating on the Verizon network.
Citing provisions in the Digital Millennium Copyright Act (DMCA), U.S. District Judge John D. Bates ruled in January Verizon must comply with an RIAA subpoena requesting the name of a Verizon Internet subscriber who allegedly downloaded more than 600 copyrighted music files in a single day.
Verizon immediately appealed the decision and asked Bates to stay his January ruling in hopes of maintaining the status quo until the appeal process is resolved.
The RIAA, though, has insisted that Verizon not only immediately turn over the name of the alleged infringer but has also issued two more subpoenas demanding Verizon finger more accused infringers. Verizon has moved to quash the subpoenas and Bates has decided to consolidate the cases, including his stay decision. A hearing is scheduled for April 1.
The RIAA in August asked a federal district court in Washington, D.C., to enforce the original subpoena, which seeks information related to “a computer connected to the Verizon network that is a hub for significant music piracy.” The motion said Verizon is the only entity that can identify the infringer behind the computer.
Verizon refused to comply with the subpoena, arguing it didn’t think the subpoena request met the circumstances that the DMCA allows for in compelling information in order to protect against piracy. Verizon contended the subpoena related to material transmitted over Verizon’s network, but not stored on it, and thus fell outside the scope of the subpoena power authorized in the DMCA.
In ruling in the RIAA’s favor, the court concluded, “that the subpoena power … applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user.”
Verizon lawyer John Thorne has expanded Verizon’s legal defense to a constitutional review of the DMCA, particularly the subpoena power provision of the DMCA. Unlike a usual subpoena, which requires some underlying claim of a crime and must be signed by a judge or magistrate, under the DMCA a subpoena can be issued by a court clerk without presenting evidence of a crime being committed.
The DMCA subpoena can compel an Internet service provider (ISP) to turn over the name, telephone number and address of a subscriber.
A number of Internet service providers and privacy groups have joined with Verizon to fight the RIAA subpoena.
“This isn’t about supporting piracy,” said Parry Aftab, executive director of Wired Safety, an Internet safety and help organization. “It’s about protecting people from Internet predators and stalkers and identity theft. The unfettered ability of anyone to gather personal information about anyone else online by misusing the DMCA subpoena hurts innocent Internet users far more than it helps copyright holders.”
Wired Safety filed documents Tuesday with the court defending Verizon’s position, focusing on the constitutional issues involved.
“If all anyone has to do to find out where someone lives in real life is to drop by the clerk’s office at any Federal District Court and fill out a form alleging that they own a copyright that is being infringed, all our work to protect people online is wasted,” Aftab said. “It is unbelievable that it is harder for law enforcement officials to obtain this same information, even when a missing child is involved, than it is for anyone willing to lie on the DMCA subpoena form.”
Aftab added, “Armed with an IP address and malicious intent, a stalker, sexual predator, con artist and identity thief will easily be able to pierce the veil of anonymity afforded to Internet users.”
One of Wired Safety’s divisions consists of volunteers from the law enforcement community who are trained on issues of cybercrime, harassment and preventing child exploitation. They are concerned that abuse of the DMCA subpoena process could also undermine the safety of law enforcement officials working on cyber-investigations.
“The identities of law enforcement officials undertaking important criminal investigations online could be inadvertently compromised from the abuse of this subpoena process when the intended target discovers that a law enforcement agency is behind a particular online undercover address,” she said.
