Verizon Seeks Stay of RIAA Ruling

WASHINGTON — Verizon Thursday filed for a stay of last week’s court order that the phone giant comply with a subpoena by the Recording Industry Association of America (RIAA) requesting the name of a Verizon subscriber who allegedly downloaded more than 600 copyrighted music files. Verizon also announced it had filed a notice of appeal with the U.S. Court of Appeals.

John Thorne, Verizon’s senior vice president and deputy general counsel, said the company felt compelled to seek a court-ordered stay, which would maintain the status quo until the appeal process is resolved, when RIAA officials on Wednesday refused to agree to a voluntary stay and insisted on immediate enforcement of the subpoena order.

“Verizon will use every legal means to protect its subscribers’ privacy,” Thorne said. “The recording industry brought this case as a ‘test case’ of its aggressive legal theories. We are seeking a stay so that the Court of Appeals can issue a final ruling on the critical legal issues before we are required to turn over a subscriber’s identity.”

Matthew Oppenheim, senior vice president of business and legal affairs for the RIAA responded to the stay request by saying Verizon “should not be permitted to ignore a law.”

Oppenheim added, “It’s a shame that Verizon has resorted to mischaracterizations and consumer scare tactics, a trait we understand they are well known for in public policy debates. Just ask some of the small, local telephone and DSL providers.”

Citing provisions in the Digital Millennium Copyright Act (DMCA), the RIAA in August asked a federal district court in Washington, D.C., to enforce the 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 had 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.”

Thorne said Thursday Verizon will expand its 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 real search warrant would have to go to a judge, but none of those protections are here,” Thorne said.

Thorne said organizations such as the RIAA were using “software agents” or “bots” to scour the Internet for possible copyright infringements. When the bot finds a possible infringement, the copyright owner can then seek a subpoena for information about the alleged infringer. However, Thorne said, the system is imperfect.

As an example, Thorne presented a letter sent to UUNet Technologies from the Mediaforce DMCA Enforcement Center, purporting to represent Warner Bros. The letter asks UUNet to terminate the account of a user who allegedly downloaded a copy of the popular movie Harry Potter and the Sorcerer’s Stone. Under the “infringement detail” portion of the letter, it notes the file size of the download was 1k and the file name was “harry potter book report.rtf.”

“If this ruling stands, consumers will be caught in a digital dragnet,” Thorne said.

Joining Verizon in its call for the reversal of last week’s court decision was a diverse group of consumer interest organizations and ISPs, including the Consumer Federation of America (CFA), a longtime foe of Verizon’s.

“Earlier this week, we and Verizon were holding dueling press conferences (over pending FCC unbundling regulations),” laughed Dr. Mark Cooper, the CFA’s director of research. “As a phone company, their head is in the wrong place. As an ISP, it’s in the right place.”

News Around the Web