Modernizing Authentication — What It Takes to Transform Secure Access
If the Recording Industry Association of America (RIAA) ultimately prevails in its legal effort to force Verizon to reveal the names of customers suspected of illegally downloading music, the Electronic Frontier Foundation (EFF) says alleged copyright infringers will be deemed guilty until proven innocent.
The EFF is leading a group of 28 consumer and privacy groups, including the Consumers Union, ACLU and the Competitive Enterprise Institute, along with a number of Internet service providers (ISPs) and ISP organizations, in support of Verizon's position that the RIAA is unfairly using the subpoena power provision of the Digital Millennium Copyright Act (DMCA).
So far, though, it has been losing battle for Verizon and the EFF coalition.
U.S. District Judge John Bates Thursday agreed with the RIAA that copyright holders can issue subpoenas to ISPs to demand identifying information about any Internet users based upon a mere allegation of infringement, with no notice to the user or judicial review of the claim required.
Bates had already sided with the RIAA in January, ruling Verizon would have to disclose under the subpoena power of the DMCA the name of an Internet customer who allegedly downloaded hundreds of copyrighted songs, but the telecom giant was seeking a stay of that decision until its appeal, which appears headed to the Supreme Court, is heard.
Bates' Thursday ruling rejected Verizon's stay request. The judge did, however, issue a temporary stay to allow the U.S. Court of Appeals time to consider the issue.
"This ruling means that the RIAA, or anyone else claiming to represent a copyright owner, can demand that your ISP turn over your identity to them without any notice to you or the opportunity to prove that you didn't do anything wrong," said Cindy Cohn, EFF's Legal Director. "The privacy of Internet users has taken a big blow today."
The RIAA in August asked a federal district court in Washington, D.C., to enforce the original subpoena, which seeks information related to "a computer connected to the Verizon network that is a hub for significant music piracy." The motion said Verizon is the only entity that can identify the infringer behind the computer.
Verizon refused to comply with the subpoena, arguing it didn't think the subpoena request met the circumstances that the DMCA allows for in compelling information in order to protect against piracy. Verizon contended the subpoena related to material transmitted over Verizon's network, but not stored on it, and thus fell outside the scope of the subpoena power authorized in the DMCA.
Verizon also contended the RIAA's action violated the First Amendment right to anonymity and privacy rights of Internet users.
In ruling in the RIAA's favor, the court in January concluded, "that the subpoena power ... applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user."
Verizon lawyer John Thorne expanded Verizon's legal defense to a constitutional review of the DMCA, particularly the subpoena power provision of the DMCA. Unlike a usual subpoena, which requires some underlying claim of a crime and must be signed by a judge or magistrate, under the DMCA a subpoena can be issued by a court clerk without presenting evidence of a crime being committed.
In his Thursday ruling, Bates said the subpoena power granted under the DMCA does not violate the first amendment rights of Internet users.
"Moreover, because Verizon is unable to show irreparable harm or that is it is likely to succeed on an appeal of its constitutional or statutory challenges, the Court also denies Verizon's request for a stay pending appeal," Bates wrote in his decision.
Verizon said it would immediately ask the Appeals Court for a stay of the ruling.
"Today's ruling goes far beyond the interests of large copyright monopolists -- such as RIAA -- in enforcing its copyrights. This decision exposes anyone who uses the Internet to potential predators, scam artists and crooks, including identity thieves and stalkers," said John Thorne, Verizon's SVP and deputy general counsel. "We will continue to use every legal means available to protect our subscribers' privacy and will immediately seek a stay from the U.S. Court of Appeals."
The RIAA, of course, hailed the decision.
"A federal district court has again affirmed that the law which provides copyright holders with a process to identify infringers is both Constitutional and appropriate," said Cary Sherman, president of the RIAA. "If users of pirate peer-to-peer sites don't want to be identified, they should not break the law by illegally distributing music. Today's decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability."