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Ruling could chill music swapping Verizon told to reveal name of 'Net customer suspected of violations

Tue, 01/21/2003 - 7:00pm
Hiawatha Bray

Copyright 2003 Globe Newspaper Company The Boston Globe...01/22/2003

In a decision that could chill the practice of Internet music swapping, a federal court in Washington ruled yesterday that the telecommunications firm Verizon Communications must reveal the identity of one of its Internet subscribers who is suspected of illegally exchanging copyrighted music files over the Internet.

Verizon said it would appeal the ruling. If the decision stands, the record industry will be able to more easily identify and sue millions of Americans who illegally exchange music files over the Internet.

The ruling is a victory for the Recording Industry Association of America, which represents the nation's biggest record companies, and a major defeat for New York-based Verizon.

It's also a severe legal setback for critics of the Digital Millennium Copyright Act, a controversial 1998 federal law designed to prevent illegal distribution of copyrighted materials in digital form. Supporters of the law, including the recording industry, computer software makers, and Hollywood movie studios, say it's a vital weapon in their efforts to prevent theft of their valuable intellectual property. But critics argue the law gives major corporations unreasonable powers to restrict the freedom and invade the privacy of consumers.

"Plainly we think the decision is wrong," said Barry Steinhardt, director of the Technology and Liberty program at the American Civil Liberties Union. "Increasingly the right to speak anonymously online is being eroded or even lost."

Verizon provides local phone service in Massachusetts and 28 other states, and is the largest wireless telephone provider in the United States. In addition, Verizon provides a variety of Internet services to businesses and consumers.

Verizon had played a major role in drafting the Digital Millennium Copyright Act, and had declared itself satisfied with the legislation that finally became law. But that changed last July, when the company received a subpoena from the RIAA, filed under the terms of the digital copyright law. The association demanded that Verizon reveal the identity of an Internet customer who had recently downloaded about 600 illegal music files using the file-swapping service Kazaa. Armed with the identity of the Verizon customer, the RIAA could take legal action against him.

Record producers visit Kazaa and other file-swapping services to spot illegal file-swapping. The services don't display a user's name, but they do reveal his "IP address," a set of digits that identifies each user to the Internet. Armed with the IP address, the record companies can find out which Net provider is being used by the file-swapper. Then they can request that the service provider tell them the name and address of the person using that IP address.

Verizon refused to comply with the subpoena, saying that the court had no right to issue it. Verizon said that under a specific provision of the digital copyright law, it could be subpoenaed only if the illegal materials were stored on its server computers. In this case, the materials were stored on the customer's computer, and Verizon merely transmitted the files over its network.

Verizon also claimed that RIAA's use of the subpoena power set a dangerous precedent. In the future, the company might be forced to reveal personal information about its customers any time someone claimed that the customer was violating a copyright law. Verizon's attorneys said the accused violator should not be identified until he or she could have a day in court to protest the subpoena, a potentially lengthy process called a "John Doe hearing."

U.S. District Court Judge John Bates swept aside Verizon's arguments. He called the company's claim that the subpoena was invalid "a strained reading" of the law, saying that even a company that merely transmitted illegal materials could be subpoenaed. As for the argument that the RIAA should have used the John Doe process to learn the identity of the Verizon customer, Bates held that there is nothing in the digital copyright law to allow for such a process. In addition, he said, the process would be so long and cumbersome that it would undermine the law.

"Now that the court has ordered Verizon to live up to its obligation under the law, we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal," said Cary Sherman, the RIAA's president.

But Sarah Deutsch, vice president and associate general counsel for Verizon, said the company would press an appeal. "We think the court got the case wrong," Deutsch said, "and we believe that there are serious privacy implications for consumers."

Jonathan Zittrain, associate professor at Harvard Law School, opposes the digital copyright law. But he said its provisions are clearly on the side of the music industry. "I figured Verizon would lose," said Zittrain. "Basically the publishers foresaw this very issue coming up in 1998, and they pushed for and got a specific provision in the Digital Millennium Copyright Act to cover this eventuality."

Zittrain said he believes the RIAA will use its subpoena power to demonstrate that large numbers of Internet users are downloading illegal materials. Then, he believes, the record producers will argue that under the act, Internet providers can be compelled to shut off service to any customer found swapping illegal files.

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