Update: Judge rules RIAA can't subpoena file-trader information

WASHINGTON - The Recording Industry Association of America (RIAA) does not have the authority under U.S. law to subpoena the names of alleged peer-to-peer file traders from ISPs (Internet service providers), a federal appellate court ruled Friday.

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The U.S. Court of Appeals for the District of Columbia overturned a lower court's decision allowing the RIAA to file subpoenas asking Verizon Internet Services Inc. to turn over the names of suspected copyright infringers without the RIAA having to file lawsuits against the alleged file traders. But the RIAA's argument that the subpoenas allowed in the 1998 Digital Millennium Copyright Act (DMCA) apply to material transmitted through an ISP as well as content stored by an ISP "borders upon the silly," the court wrote.

The RIAA, which has requested hundreds of subpoenas this year, has filed 382 civil lawsuits against people who have allegedly shared music files illegally through peer-to-peer (P-to-P) software. The RIAA will continue to pursue legal action against file traders, even without the benefit of the DMCA subpoenas, the association said in a statement.

"This decision is inconsistent with both the views of Congress and the findings of the district court," said Cary Sherman, president of the RIAA in a written statement. "It unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation. Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity."

A Verizon lawyer disputed the RIAA's argument that Verizon will be responsible for file traders not being notified of legal actions against them. Verizon has been notifying targets of RIAA lawsuits after subpoenas have been filed, and the RIAA has argued before courts that ISP subscribers don't have due process rights to fight the subpoenas, said Sarah Deutsch, Verizon Communications vice president and associate general counsel.

"That is a completely disingenuous argument," Deutsch said of the RIAA position. "We have been the ones who've been providing notice (of the subpoenas) to subscribers."

Deutsch cheered the appeals court decision. "We thought the ruling was right on the mark," she said. "It's a very important ruling for all Internet users and consumers."

Verizon has received more than 400 DMCA subpoenas from the RIAA this year, Deutsch said. Asked what effect Friday's court ruling has on existing RIAA lawsuits against ISP subscribers who had been identified through the subpoenas, Deutsch said she wasn't sure.

A lawyer for the Electronic Frontier Foundation (EFF) called Friday's court ruling a victory for Internet users. "Internet users are the winners in the Verizon case," EFF staff attorney Wendy Seltzer said in an e-mail. "The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan."

The DMCA does not allow for copyright holders to subpoena the names of ISP subscribers who simply use the ISP to access the Internet, wrote Chief Judge Douglas Ginsburg. "We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect those rights," Ginsburg wrote in his opinion. "It is not the province of the courts, however, to rewrite the DMCA in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries. The plight of copyright holders must be addressed in the first instance by the Congress."

The DMCA does not address P-to-P file trading because the technology was not yet being used when the law passed in 1998, Ginsburg noted. The law allows copyright holders to subpoena ISPs when material that allegedly violates copyright resides on their servers, but does not address the actions of ISPs' customers, he wrote.

In January 2003, a U.S. District Court judge ruled that Verizon had to turn over the name of an alleged file trader in response to an RIAA subpoena. Verizon has argued that the subpoenas, which are issued by a clerk of court without any further legal action required from the copyright holder, could destroy online privacy. Verizon and Pacific Bell Internet, a subsidiary of SBC Communications Inc., have fought the RIAA subpoenas, saying anyone claiming to be a copyright holder, including stalkers and rapists, could file subpoenas to find out the identity and home address of any Internet user.

The RIAA has argued the subpoenas are needed to fight the proliferation of illegal file trading using P-to-P software. The RIAA blames file trading for declining CD sales.