RIAA wins ruling : Verizon must identify Kazaa user

[nifer]

Recording Firms Win Copyright Ruling

Judge Orders Verizon to Identify Internet Customer Who Used Music-File-Sharing Service

By Jonathan Krim

Washington Post Staff Writer

Wednesday, January 22, 2003; Page E01

An Internet service provider must turn over the identity of one of its customers suspected of illegally trading music files, a federal judge ruled yesterday, handing the recording industry a powerful new weapon in its efforts to crack down on what it considers digital piracy.

In a closely watched test case of how much anonymity Internet users can expect, U.S. District Judge John D. Bates ordered the online division of Verizon Communications Inc. to give the Recording Industry Association of America (RIAA) the name of a Verizon customer who had downloaded as many as 600 songs a day using the popular Kazaa music-file-sharing service.

If the decision survives a promised appeal, it means that people who use such file-swapping programs could be targeted for legal action by entertainment companies. Because file sharing is popular with teenagers, their parents also could be in the cross hairs if they are the official subscribers of online services that connect their homes to the Internet.

The major labels have been waging fierce legal battles against file-sharing services, successfully shutting down the pioneering Napster Inc. and recently winning a ruling that the overseas-based Kazaa service could be sued in the United States. But online file sharing, which allows users to trade songs without paying for them, has persisted, costing the industry an estimated $5 billion in lost revenue last year worldwide.

The Kazaa software has been downloaded more than 100 million times. Now the industry can zero in on individuals as well, legal experts said.

"This will be a big club in the hands of the entertainment industry," said Jonathan Band, a Washington lawyer who specializes in Internet law. "They will definitely be able to reach a class of users that they have not been able to reach until now."

Cary Sherman, president of the RIAA, hailed the decision.

"The illegal distribution of music on the Internet is a serious issue for musicians, songwriters and other copyright owners," he said in a statement. "Now that the court has ordered Verizon to live up to its obligation under the law, we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal."

Sarah B. Deutsch, Verizon's associate general counsel, countered that the judge improperly interpreted the law and that the company would appeal.

Internet service companies fear that if the decision stands, they will be deluged by subpoenas from the music industry demanding the identities of the tens of thousands of users, which will compromise their privacy and have a "chilling effect" on consumers and the online providers, she said.

Verizon also argued that the subpoena process is unfair to users because it does not require judicial approval. Subpoenas can be issued by the clerk of any federal court.

The case began last July, when the RIAA served Verizon with a subpoena for the user's name under a provision of the 1998 Digital Millennium Copyright Act (DMCA). The organization uses automated software to scour the Internet and identify file swappers but can identify them only by numeric Internet addresses on various networks. The RIAA also asked Verizon to terminate the user's service, which Verizon refused to do.

Verizon said it opposes digital piracy but argued that under the law Internet service providers are required to provide such information only if the offending material is stored on its network -- if, for example, it provides Web hosting services -- and not if it is merely the conduit for data transmission. Typically, the offending files reside on users' computers, which they make publicly available over the file-sharing networks.

But Bates ruled that the 1998 copyright act clearly specifies an ability and process for copyright holders to demand the identities of suspected infringers.

"Verizon's assertions to the contrary are refuted by the structure and language of the DMCA," Bates wrote. "Verizon has provided no sound reason why Congress would enable a copyright owner to obtain identifying information from a service provider storing the infringing material on its system, but would not enable a copyright owner to obtain identifying information from a service provider transmitting the material over its system."

That distinction is crucial to online providers. Providers often work with law enforcement agencies to identify lawbreakers but have been generally exempted from responsibility for the actions of their users in non-criminal areas such as libel.

"We support the right of RIAA and other copyright owners to protect their intellectually property," said David Baker, head of public policy for online provider EarthLink. "But RIAA is misusing the DMCA as a sword instead of a shield."

Some of the consumer groups that filed briefs in support of Verizon argued that the DMCA is unconstitutional because it restricts users' "fair use" rights to replay music and infringes on their privacy.