Music Firms, ISPs Battle Over Identity of Sharers

In a strategic shift, the major record labels want to expand their fight against online piracy by going after people who use file-sharing networks to copy songs for free. The problem is, they don’t know who those people are.

And Internet service providers, which do know, don’t want to tell.

A federal judge in Washington on Friday began deliberating how hard it will be for the labels to ferret out the identity of Internet users accused of violating copyrights. At issue is whether the labels can use a federal court subpoena to force Internet providers to name a file-sharing customer, or whether they must sue suspected infringers individually to get that information.

The case initially pit the labels’ trade association, the Recording Industry Assn. of America, against a single Internet service provider, Verizon Internet Services Inc. Reflecting the potential effect on the entire entertainment industry and Internet users at large, though, the Hollywood studios and music publishers have intervened on the RIAA’s behalf, while numerous Internet service providers, consumer advocates and civil liberties groups have sided with Verizon.

U.S. District Judge John D. Bates gave no indication Friday how he might rule. The judge sharply questioned both sides and decried ambiguities in the 1998 law that created the subpoenas.

Congress “could have made this statute clearer,” Bates said, referring to the Digital Millennium Copyright Act.

Verizon and its allies acknowledge that they have to disclose the identity of customers who store pirated material on an Internet service provider’s network. They’re fighting the latest RIAA subpoena, however, because the allegedly pirated songs are on the customer’s personal computer.

The dispute comes as the record companies are opening a new chapter in their battle against piracy. Despite several important legal victories against file-sharing companies, consumers are still making unauthorized copies of millions of songs, movies, games and other copyrighted works every day through file-sharing networks.

So in addition to suing the networks, the labels are mounting a high-profile campaign to educate consumers about the law and threatening to take direct action against the most active file sharers.

In particular, the labels want to target users who offer extensive collections of digital music for others to copy.

By drying up the source of music on a file-sharing network, the labels may encourage users to shift to authorized online music services--or simply move them to another file-sharing outpost.

The current case arose after an RIAA anti-piracy investigator found a user of the Kazaa file-sharing network who was offering more than 600 songs for copying, covering a gamut of styles and artists, including Nelly Furtado, the late Aaliyah, the Who and the Association. On July 24, the RIAA delivered a subpoena to Verizon, which was providing the user’s high-speed Internet service somewhere in the Pittsburgh area.

Verizon refused to comply, prompting the RIAA to sue to enforce the subpoena.

“The only thing that seems to make a difference to file sharing is when people know it’s illegal,” said RIAA President Cary Sherman on Thursday, citing surveys conducted by the labels. “We have no way to notify the [Internet provider’s] subscriber that what he or she is doing is illegal.... We have to get the information from them to know who to notify.”

Under the Digital Millennium Copyright Act, copyright holders who find evidence of infringement online can obtain a subpoena compelling the Internet provider to identify the customer in question. To obtain a subpoena, the copyright holder must submit a sworn statement identifying the disputed files and expressing a “good-faith belief” that their copyrights were infringed.

Verizon and its allies argue that this provision applies only when the disputed files are on the Internet provider’s network--for example, when they’re on a Web site operated by the Internet provider on a customer’s behalf.

When the infringing files are housed on the users’ computers, copyright holders need to file a “John Doe” lawsuit against the alleged infringer before issuing a subpoena, they contend. Once a lawsuit is filed, they say, the alleged infringer would receive notice and be able to challenge any attempt to disclose his or her identity.

“Verizon was a passive conduit at most” in the transfer of copyrighted songs, Verizon’s lead lawyer, Eric H. Holder Jr., told the judge. “We also don’t want to be the policeman in this process,” said Holder, a former deputy attorney general in the Clinton administration.

The RIAA argues that the 1998 law provides for subpoenas regardless of where the disputed works are stored. In fact, RIAA officials say, Internet providers have complied with several previous subpoenas to identify people offering songs stored on their own computers.

At the hearing, RIAA attorney Donald B. Verrilli Jr. said the 1998 law shielded Internet providers from copyright liability in exchange for their assisting in enforcement efforts.

“They want the benefits ... without the responsibilities,” Verrilli said.

The main fear among Internet providers is that copyright holders will use automated anti-piracy tools to flood them with thousands of requests to identify file sharers. “That is not something we could comply with,” Dave Baker, vice president of law and public policy for EarthLink Inc., said at a news conference this week.

Civil liberties groups, meanwhile, are concerned about the implications for free speech and the public’s ability to communicate anonymously.

The copyright act’s subpoena provision forces Internet providers to reveal the identity of customers accused of copyright infringement without letting them challenge the evidence or defend their behavior, said Megan Gray, an attorney for the groups.

“Everybody in this country is a copyright holder, so that’s giving anybody that may have a beef the right to go and unmask a critic, a target of their affection ... [or] unmask a whistle-blower,” Gray said. “It really could expand to any number of users.”

Healey reported from Los Angeles and Shiver from Washington.