Copyright Versus Privacy: The RIAA Cracks Open the Internet

In 1787, as the Founders crafted the Constitution, they took particular care to include special protections to promote innovation in “science and the useful arts” by establishing protections to allow individuals to be rewarded for their efforts. Today, however, the Recording Industry Association of America (RIAA) is wielding copyrights in ways that stifle innovation. Even worse, it has abandoned innovation in favor of a political club that now threatens the privacy of virtually every user of the Internet.

In a recent decision in the case RIAA v. Verizon, the court held that as an Internet Service Provider (ISP), Verizon must reveal the names of two of its customers to the RIAA, which had accused them of downloading copyrighted material. U.S. District Court Judge John Bates ruled in favor of the RIAA in January, which led to an appeal by Verizon as well as a request to stay the decision until the appeal was heard. In late April, Judge Bates ruled that the action was constitutional and that Verizon must comply and provide the name of two customers. However, a temporary stay was granted while the case moves to the U.S. Court of Appeals.

The Digital Millennium Copyright Act, passed in 1998 created a subpoena process that allows copyright holders to track down copyright violators through their ISP. Unfortunately, this DMCA approach has two fundamental flaws. First, the subpoena process outlined by the DMCA is a marked departure from the typical subpoena. Traditionally, a judge grants a subpoena after determining there is enough evidence to suggest criminal activity. Under the DMCA, however, the judge is not even involved in the procedure, and the subpoena is issued under a mere allegation of criminal activity. Without any determination by a judge, a clerk of the court can issue a subpoena that requires the ISP to divulge personal information about a customer without providing the user any advance notice or the chance to prove he did nothing wrong.

Second, by the nature of copyright law, virtually anyone can claim to be a copyright holder. Photographs, notes, and other commonplace materials created by individuals are considered copyrighted, opening the subpoena process to the potential for a wide range of abuses, from identity theft to stalking. Reputable ISPs have traditionally placed a high value on protecting the privacy of their customers; unfortunately, the court’s support of the DMCA subpoena process weakens this fundamental principle.

For consumers and Internet users, the court’s ruling poses serious privacy questions. Fraudulent or malevolent use of the bench subpoena can put any user’s privacy at risk, as ISPs are forced to comply with questionable subpoenas. Even worse, subpoenas may be granted based on suspicions of copyright violation, leaving everyone vulnerable to privacy incursions, whether or not they are actually engaged in activities that violate copyright laws.

While the recording industry may have legitimate concerns about copyright abuses, badgering consumers with heavy-handed interrogations is not the solution. Beyond alienating consumers, these actions can have a direct impact on the future development of the Internet. As ISPs are forced into compliance, they may develop new policies that restrict Internet freedom to protect themselves, such as metering broadband use, censoring web sites, or refusing access.

As the issue winds its way through the courts, it is important to keep in mind the broad ramifications it poses for all who use the Internet. Regulations and mandates are making inroads in cyberspace as powerful business interests revert to politics and government solutions in a rapidly changing marketplace. Innovation and privacy are at risk, as consumers face threats not just from a ham-fisted industry, but from anyone who files for a subpoena.