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Verizon wins appeal over RIAA subpoenas


An appeals court ruled in favour of Verizon late last month in a controversial action brought against the ISP by the Recording Industry Association of America. The court decided that Verizon should not be forced to reveal the identity of a customer accused of internet piracy for using file-sharing, or P2P services.

The case dates back to August 2002 when the RIAA took the telecoms giant to court because it refused to identify customers who were making available MP3 files of copyrighted songs from their home computers, using file-sharing services like KaZaA. Until this time, the RIAA had concentrated its legal efforts on those providing the P2P services.

The RIAA had served a subpoena on Verizon – basically a demand for the identity of alleged infringers – under a provision of America's Digital Millennium Copyright Act (DMCA).

This provision states:

"a copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer".

A judge is not involved in the issue of the subpoena.

Verizon argued that because the allegedly infringing files resided on a home PC, not Verizon's servers, the subpoena was not valid. The RIAA countered that the legislation does not specify that the infringing material reside on the ISP's network.

In January 2002, the court decided in favour of the RIAA and Verizon immediately asked for a stay in identifying its subscribers while the decision was appealed. The court provided only a temporary stay, which was lifted in June.

Consequently, the two subscribers were identified and they promptly settled with the RIAA. More significantly, the decision opened the door for the RIAA to issue more subpoenas.
Since June, the RIAA has issued more than 1,600 of them, followed by almost 400 lawsuits against identified file-sharers. Many more actions are expected to follow.

However, on 19th December the Court of Appeal ruled that the RIAA could not force ISPs to reveal the identities of file-sharers on the basis of the DMCA subpoenas.

The RIAA will still be able to sue file-sharers, but will now have to obtain court-approved subpoenas, which can then be served on ISPs. The change means that file-sharers will be able to challenge the subpoenas before their identities are revealed.

In a statement Sarah Deutsch, vice president and associate general counsel for Verizon said:

"This decision removes the threat of a radical, new subpoena process that empowers copyright holders or anyone merely claiming to be a copyright holder to obtain personal information about internet users by simply filing a one-page form with a court clerk. This harmful procedure exposes anyone who uses the internet to potential predators, scam artists and crooks – including identity thieves and stalkers."

"Copyright holders seeking personal information about internet subscribers will now have to file a traditional lawsuit. These requests will undergo scrutiny by a judge, thus preserving the privacy, safety and legal rights of every internet subscriber."

The RIAA responded:

"This is a disappointing procedural decision, but it only changes the process by which we will file lawsuits against online infringers. 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 copyright infringement lawsuits against illegal file sharers."

In fact, according to a report released earlier this week, the RIAA's strong attack on file-sharers appears to be having an effect. A survey carried out by the Pew Internet & American Life Project, a non-profit research organisation, found that fewer Americans are now downloading music or using file-sharing services than in the spring – 14% of Americans, down from 29%.

The study points to factors that may have influenced the drop, including the growth in legitimate forms of music downloading such as Apple's iTunes.

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