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    Verizon Pursues Appeal of RIAA Subpeona As Opposition Grows

    01/31/2003
    on 1/31/03.

    Backed by growing number of allies, Verizon said Thurs. it would appeal decision permitting RIAA to use subpoena issued under Digital Millennium Copyright Act (DMCA) to uncover identity of subscriber said to be committing massive online copyright infringement. At news briefing, company said it would ask U.S. Dist Court, D.C., to stay its Jan. 21 order pending appeal to U.S. Appeals Court, D.C. Case, RIAA v. Verizon Internet Services, is considered test case on DMCA subpoena power.
    Verizon is seeking stay so it doesn't have to turn over personal information about its subscriber, as it was ordered to do by lower court, Verizon Senior Vp-Deputy Gen. Counsel John Thorne SAID. In its appeal, Verizon will argue that: (1) Art. III of Constitution confines federal court power -- including subpoena power -- to "cases and controversies," something that it said was lacking in this situation because RIAA never filed actual lawsuit. (2) First Amendment grants citizens right to speak anonymously. (3) DMCA subpoena provision doesn't apply to people who merely use Internet to view Web sites or send e-mail. Legal issue, Thorne said, is whether private parties can compel disclosure of who someone is and where the person lives based on an Internet address.
    Safeguards that apply in normal subpoena cases aren't present here, Thorne said, because RIAA is suing "software agents" or "bots" that scour Internet looking for potential infringers and then generate take-down notices. Issue goes beyond copyright, he said, because if trial court's decision is left standing, stalkers, strangers and anyone else will be able to obtain user's identity via DMCA's automated process.
    Verizon met with RIAA last week to ask group's approval for seeking stay, Thorne said. Not only did RIAA refuse -- saying it wanted immediate enforcement of decision -- but it told Verizon volume of subpoenas it anticipated being issued would be so large that it needed to link to Verizon's computers to facilitate transfer of identifying information. That's a "nonstarter," Thorne said.
    RIAA said it would, "not surprisingly," oppose Verizon's request for stay. Court had rejected Verizon's claims and company shouldn't "be permitted to ignore a law Judge Bates thought clear," said Matthew Oppenheim, RIAA senior vp- business & legal affairs. "It's a shame that Verizon has resorted to mischaracterizations and consumer scare tactics, a trait we understand they are well known for in public policy debates. Just ask some of the small, local telephone and DSL providers."
    Verizon has received support from several groups. At briefing Thurs., Consumer Federation of America (CFA) Research Dir. Mark Cooper said consumers considered this a "big case." DMCA is "bad law and bad policy," he said: It's unconstitutional and destroys the "open, dynamic environment the Internet was." While "real police" have to convince judge or magistrate of need for subpoena, he said, "Internet KGB" doesn't. CFA believes in enforcing copyright traditional way, he said, and DMCA destroys consumers' faith in balance between consumer rights and copyrights.
    Peter Swire, who was Clinton Administration's chief counselor for privacy and is now law prof. at Ohio State U.'s Moritz College of Law, said he would file declaration on behalf of Verizon arguing that what RIAA was doing was invasion of privacy. Under DMCA, he said, once Web site picked up someone's address, anyone could gain access to it without due process or judicial supervision. "I've never seen any provision like this," he said. Law opens door to scenarios in which either subpoenas are filed fraudulently or there's an arguable copyright claim, he said.
    Verizon's decision to appeal was hailed by many. Alliance for Public Technology said online privacy must be protected. Digital Media Assn. Exec. Dir. Jonathan Potter called RIAA's action "another court test of the customer- monitoring and policing obligations of all [ISPs] and connected digital services."
    Public Knowledge said it supported enforcement of copyright laws to limit illegal peer-to-peer file-swapping, but "these laws should not be enforced without due process." Allowing copyright owners to learn names of Internet users without any judicial imprimatur permits virtual "witch hunts" for defendants "presenting the worst facts of having profiles least likely to garner public or judicial sympathy," group said.
    Telecom Research & Action Center, telecom-focused consumer group, said it was concerned that giving up personal information without legal safeguards would "irrevocably harm consumers and ultimately the usefulness of online services." National Assn. of Consumer Agency Administrators said RIAA's subpoena "represents an issue of grave concerns to consumers and consumer advocates." Many consumers, it said, don't trust companies to keep their personal information private.
    American Legislative Exchange Council (ALEC), bipartisan organization of state legislators, urged court to stop RIAA from seeking identity of Verizon's subscriber. DMCA doesn't create class of property superior to tangible property, said Morgan Long, dir. of ALEC's telecom & information technology task force. "The property interests of RIAA are of not less significance constitutionally and statutorily than that of Verizon's own property rights and the property rights of its customers."
    Citizens for a Sound Economy branded trial court decision "neither proconsumer nor reasonable public policy." U.S. Internet Industry Assn. also criticized ruling, saying Congress never intended for copyright holders to have right to invade consumers' personal privacy without due process of law.
    World has changed since DMCA was enacted in 1998, CFA's Cooper said. At time, he said, no one thought act was aimed at home Internet users. If DMCA were "rattling around" now it would be viewed much differently," he said. -- Dugie Standeford