Ruling a blow to music industry

D.C. panel limits access to identities of file sharers

Lower court is reversed

Decision hailed as win for Internet providers

December 20, 2003|By Dan Thanh Dang | Dan Thanh Dang,SUN STAFF

In a substantial setback for industry efforts to stop music piracy, a federal appeals court ruled yesterday that the Recording Industry Association of America cannot force Internet service providers to reveal the names and mailing addresses of alleged music swappers on their networks.

By overturning a lower court's decision, the U.S. Court of Appeals for the District of Columbia Circuit eliminated a powerful tool used by the RIAA under the Digital Millennium Copyright Act of 1998 to learn the identities of computer users and sue them for downloading music.

The RIAA has sent out nearly 3,000 subpoenas and sued 382 people since last summer, settling 220 of those cases with file sharers who had been notified of RIAA legal action, had been named as a defendant in a lawsuit or had contacted the association on their own to work out a deal.

While the ruling does not make music piracy legal, it does rein in the recording industry's ability to pursue file swappers without court oversight.

The lower court decision had permitted music companies to force Internet providers to turn over the names of suspected music pirates by simply requesting a subpoena from any U.S. District Court clerk's office, without a judge's signature required.

Calling the court's decision a victory for Internet providers and computer users across the country, legal experts said the ruling will help protect privacy and prevent an abuse of industry power.

"It is a devastating opinion against the RIAA," said Leonard Rubin, an intellectual property rights lawyer with Sachnoff & Weaver in Chicago. "The subpoenas and lawsuits were absolutely a scare tactic used by the RIAA to get users into thinking that `If I get caught, this could cost me thousands of dollars.' RIAA now has to re-think its strategy."

The ruling will place the burden on the RIAA to prove there is enough evidence before naming any individual in a lawsuit and obtaining subpoenas, said the Electronic Frontier Foundation, a San Francisco-based nonprofit group working to protect digital rights. The foundation has helped represent individuals who have been sued by the RIAA.

"I am thrilled," said Wendy Seltzer, a foundation staff attorney. "All [Internet providers] should now challenge RIAA subpoenas. This gives people a chance to defend themselves, which certainly wasn't the case before."

"It was never the intent of Congress that copyright holders should have the right to invade the personal privacy and security of American consumers on the basis of allegations, and without due process under the law," said Dave McClure, president of the U.S. Internet Industry Association.

"Unquestionably, they will try to appeal this decision to the U.S. Supreme Court," Rubin said. "Whether they will succeed, nobody knows."

The ruling will not stop the industry from pursuing file swappers, the RIAA warned yesterday.

"This is a disappointing procedural decision, but it only changes the process by which we will file lawsuits against on-line infringers," RIAA President Cary Sherman said in a written statement.

"This decision in no way changes our right to sue, or the fact that those who upload or download copyrighted music without authorization are engaging in illegal activity. We can and will continue to file copy- right infringement lawsuits against illegal file sharers."

The RIAA said it has not made a decision about whether it will appeal the ruling.

It is also unclear how the ruling will affect the RIAA lawsuits that have already been filed against individuals. Legal experts said it is likely those cases will continue.

But identifying and pursuing file swappers will be more difficult in the future, experts said.

One possible change in tactics, experts said, would involve the RIAA's filing copyright lawsuits against "John Doe," using Internet addresses. The industry would have to persuade a court that the lawsuit was not frivolous and demonstrate that there was enough evidence against a person to name him or her as a defendant in a lawsuit.

The industry will also continue pursuing efforts to encrypt compact discs to prevent them from being copied.

The recording industry's high-tech battle against copyright infringement began in the late 1990s, when computer users with access to the Internet began offering digital copies of recordings for downloads by other users, a practice known as file sharing.

Two years ago, the industry successfully shut down file-sharing pioneer Napster Inc., but millions of people around the world continued sharing music through other peer-to-peer computer programs such as KaZaA, Morpheus, Grokster and eDonkey.

Online music piracy, the RIAA says, has caused compact disc sales to plummet by billions of dollars in recent years.

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