September 16, 2003 10:53 AM PDT

Court scrutinizes P2P subpoena process

WASHINGTON--A federal appeals court on Tuesday scrutinized the details of a 1998 copyright law, wondering whether it permits the wide-scale unmasking of alleged peer-to-peer pirates by the music industry.

The three-judge panel gave little indication of whether it would continue to permit the Recording Industry Association of America (RIAA) to exploit the law's turbocharged subpoena procedures in its campaign against file-trading networks. But the judges did seem to lend more credence to Verizon Communications' arguments than did U.S. District Judge John Bates, who ruled in January that the RIAA's use of the law was valid.

Judge John Roberts questioned the RIAA's expansive interpretation of the controversial Digital Millennium Copyright Act (DMCA), which allows copyright holders to glean the identity of alleged infringers without filing a lawsuit first. Roberts said that if he left the door to his library ajar and someone entered, "that doesn't make me liable for copyright infringement."

The case is key to the RIAA's legal strategy, which now involves suing individuals suspected of copyright infringement. If the U.S. Court of Appeals for the District of Columbia Circuit overturns the lower court's decision, the RIAA could be forced to file thousands of "John Doe" lawsuits instead--a more expensive strategy that could lead to additional negative publicity.

All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

Roberts also suggested that Verizon makes extra money from home customers who pay more for broadband services that accelerate file-swapping. Verizon lawyer Andrew McBride, a partner at Wiley Rein & Fielding, replied by saying that Verizon has inked deals with commercial services that sell music.

Chief Judge Douglas Ginsburg took issue with Roberts' argument that DMCA subpoenas were only intended to target files that an Internet provider hosts and not those stored on its users' computers.

Ginsburg said Congress must have intended for the DMCA to extend to end users, reading from a Salon.com article that appeared half a year before the law was enacted. "The vehicle then was the File Transfer Protocol," Ginsburg said. "But it was the exact same problem. You suggested (end-user piracy) was not even part of the universe in 1998."

The three judges spent little time on Verizon's sweeping claims that the expedited subpoenas could endanger privacy and free speech, instead choosing to examine the minutiae of the DMCA, what Congress intended to say when drafting the law, and whether permitting subpoenas in the absence of a lawsuit agreed with the U.S. Constitution's requirement of an actual "case or controversy." Scott McIntosh, an appellate lawyer with the U.S. Justice Department, assured the court that "we don't think the constitutional questions are substantial ones."

Tuesday's arguments come as scrutiny of the DMCA subpoena process is growing. During a hearing Sept. 9, some senators said they were paying close attention to how it was being used, and Sen. Sam Brownback, R-Kan., has indicated he may introduce a bill on Tuesday to amend the DMCA to immunize Internet service providers from such subpoenas.

 

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