December 19, 2003 10:40 AM PST

Court: RIAA lawsuit strategy illegal

A federal appeals court on Friday handed a major setback to the record industry's legal tactics for tracking down and suing alleged file swappers, in a high-profile case pitting copyright law against the privacy rights of Internet users.

Reversing a series of decisions in favor of the Recording Industry Association of America (RIAA), the Washington, D.C., court said copyright law did not allow the group to send out subpoenas asking Internet service providers for the identity of file swappers on their networks without a judge's consent.

News.context

What's new:
A federal appeals court rules against the record industry's use of subpoenas to track down alleged file swappers.

Bottom line:
The ruling, which focuses narrowly on an unconventional subpoena power, is a blow to the recording industry, but does not address the legality of lawsuits already filed against hundreds of individuals.

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"We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect those rights," the court wrote. "It is not the province of the courts, however, to rewrite (copyright law) in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry."

While it is a blow to the recording industry, Friday's decision is unlikely to derail the RIAA's ongoing lawsuits against hundreds of individual file swappers. The ruling focuses on the unconventional subpoena power that the organization had claimed in order to seek ISP subscribers' identities and does not address the legality of the lawsuits that have already been filed.

File swappers are generally anonymous on peer-to-peer networks, identified only by an Internet Protocol (IP) address assigned by their ISP. But names and addresses of subscribers can be determined by reviewing ISP records, which can connect IP addresses to individual accounts.

Even if the court's decision is ultimately upheld against appeals, the RIAA still will have the power to identify and sue file swappers.

The big difference, though, is this: The RIAA would have to file a "John Doe" lawsuit against each anonymous swapper, a process that would be considerably more labor-intensive and time-consuming. That in turn could limit the number of people the association has the resources to pursue.

"It is a pretty big setback," said Evan Cox, a copyright attorney with law firm Covington & Burling. "At the end of the day, it's a practical issue. It's mostly going to mean considerable extra expense and a fair amount of additional paperwork and formality."

The RIAA said it would continue its lawsuits against individual swappers, even if it is not able to use the subpoena power.


Read the decision

An RIAA executive said this new "John Doe" process would be more intrusive for individuals, not less, since the organization would no longer be able to contact potential lawsuit targets and settle before filing an official suit. For several months, it has been sending letters to suspected file-swappers after obtaining their identities from ISPs and offering a settlement instead of going to court.

"This decision is inconsistent with both the views of Congress and the findings of the district court," RIAA President Cary Sherman said in a statement. "It unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation. Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity."

The appeals court's decision comes after the RIAA sued 382 individuals alleged to have offered copyrighted music for download through file-swapping services such as Kazaa, and settled with 220 people for amounts averaging about $3,000 apiece. Many of those settlements had been made before suits were filed, the organization has said.

The suits have dramatically helped raise awareness of the legal issues surrounding file swapping and have also prompted considerable criticism--most notably after the group's first round of lawsuits targeted a 12-year-old honors student living in New York public housing. That suit was settled just a day after being filed, as the RIAA sought to defuse an immediate public relations backlash.

Most of the legal challenges to the RIAA's strategy have focused on the subpoena process used to obtain identities, rather than on the copyright lawsuits themselves.

The DMCA factor
Since the beginning of last year, the RIAA has cited provisions in the Digital Millennium Copyright Act as the legal basis of its subpoena strategy. The subpoenas were used to get ISPs to reveal the identities of anonymous subscribers who, the RIAA alleged, were infringing copyrights by swapping files over peer-to-peer networks.

Unlike traditional subpoenas issued by law enforcement organizations, these were requested by a private group and were not attached to an ongoing lawsuit--factors that immediately drew criticism from civil rights groups.

Verizon, the first ISP to receive several such subpoenas, challenged them immediately, saying they were unconstitutional. A lower court ruled in favor of the RIAA earlier this year, setting the stage for the hundreds of lawsuits it subsequently filed. SBC Communications, Charter Communications and the American Civil Liberties Union have also filed their own, separate challenges to the procedure.

Verizon welcomed Friday's court decision, saying it would help protect the privacy of people on the Internet.

"Today's ruling is an important victory for Internet users and all consumers," Sarah Deutsch, a Verizon associate general counsel, said in a statement. "The court has knocked down a dangerous procedure that threatens Americans' traditional legal guarantees and violates their constitutional rights."

The appeals court did not talk about constitutionality or privacy in its decision Friday, but said only that Congress had not drafted the DMCA to apply to peer-to-peer networks.

The 1998 law came out of a bitter Congressional battle between copyright holders and telecommunications companies over liability for online infringement. The conflict ended in a compromise, which said that ISPs would not be held liable for communications that simply passed through their infrastructure, as opposed to stored on their servers or networks.

Using similar reasoning, the court said the law's subpoena provisions did not apply to peer-to-peer networks, since the copyrighted material was never stored on an ISP's network, but was transferred directly between users' computers.

"This certainly underscores what ISPs have said from the beginning," said Fred von Lohmann, an attorney for the Electronic Frontier Foundation, a civil liberties group that has been critical of the RIAA's strategy. "This was not the deal that was struck in the DMCA. Peer-to-peer (networks) did not exist when the DMCA was being drafted, and Congress did not have this kind of subpoena factory in mind."

The decision is likely to spark a new round of political skirmishing over copyright policy, although the RIAA did not say whether it would lobby Congress for a change in the law. Indeed, in its decision Friday, the court said Congress may want to revisit the issue with the new technology in mind.

"The stakes are large for the music, motion picture, and software industries and their role in fostering technological innovation and our popular culture" the court wrote. "It is not surprising, therefore, that even as this case was being argued, committees of the Congress were considering how best to deal with the threat to copyrights posed by P2P file-sharing schemes."

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IN DEFENSE OF FREE PEER TO PEER MUSIC DOWNLOADING FROM THE INTERNET
As an Attorney, the best defenses to the draconian RIAA are the following arguments:

The RIAA benefits (and has benefited) enormously from spreading their music around as much as possible by giving kids a "taste" for nearly a whole decade of free and unfetterd music downloading from the internet, and then forcing them to buy them at markedly increased prices - analagous to getting people hooked on crack cocaine with free samples, and then extorting all of their money when they become hopelessly addicted to free downloading (this is, at the very least, "contributory negligence" on the part of the RIAA because for too long, they made it too easy to download free music, with no repercussions, and over time this became part of mainstream teenage culture and vernacular).

Now those teens are adults, and they were literally weaned for their entire lives on, and were created into a generation of, free music downloaders. The RIAA's cruel efforts to stop them through financial intimidation and vicious lawsuits now strikes these kids as being totally alien and unnatural, like telling them that now playing video games or eating spaghetti is illegal, punishable by hefty monetary fines or jail time.

Kids have been freely recording their favorite songs and using them in their private capacities ever since music has been played on the radio, since the 1950s, using recording cassettes and CD burners.

Why is recording music played on the radio, and then playing it for one's self-enjoyment at home or in the car, different from downloading it from the internet?

There is no question that the RIAA has been contributorily negligent in the decade long free downloading frenzy, by letting it go on virtually unfettered for almost a decade, and it is the RIAA that should be forced to bear any and all financial losses.

The legal doctrine of "laches" exists when equity aids the vigilant, and not those who procrastinate regarding their rights by neglecting to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should, or could, have been done to assert a claim or right for an unreasonable and unjustified time causes disadvantage to another. Laches is similar to a "statute of limitations," except that it is equitable rather than statutory, and is a common affirmative defense raised in civil actions. In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity, delay will also generally be prejudicial.

Since the RIAA did nothing about it really, and raised an entire generation of kids who thought it was normal, and also contributed to this problem by making it rather easy, then it is the RIAA who should bear the financial losses due to free music downloading, not the kids.
Posted by BLACKSTEEL10005 (1 comment )
Reply Link Flag
Other related story I found
RIAA in your shower!

The Record Industry Association
of America (RIAA) announced
today plans to issue lawsuits
for those people who hum
and/or whistle popular music
in their showers.

"For years, we have known that
if you listen to a song over
and over again, you remember
the song and eventually
start humming the tune", says
RIAA spokesman, Rob Newhand.

"The song stored in the memory
of the indivdual is in direct
violation of RIAA rules and
international copyright laws."

When asked how the RIAA plans to
police the showers of people and
the response was "we have
our ways."

The first round of lawsuits
are plan to be disbursed in
the next month for people
who hum or whistle more then
4 songs in a week in their
showers.

Mr. Newhand went on to say
"If you hum, whistle or
sing copyrighted songs, we
will find you!"

When asked what the RIAA pans to
do with money collected as a
result of the lawsuits, this
is what they had to say.

"As you know, due to the
recent problems with copyright
violations, most artists you
hear today on the radio today
are on food stamps, welfare
or are homeless and on the
street", states Mr. Newhand.

"With the money we collect,
we plan on finding most of
these artists and offer
them a warm meal or two, perhaps
even help them get a place
to live. After we take our
cut and pay our lawyers, of
course."
Posted by webkrawlerr (4 comments )
Reply Link Flag
Other related story I found
RIAA in your shower!

The Record Industry Association
of America (RIAA) announced
today plans to issue lawsuits
for those people who hum
and/or whistle popular music
in their showers.

"For years, we have known that
if you listen to a song over
and over again, you remember
the song and eventually
start humming the tune", says
RIAA spokesman, Rob Newhand.

"The song stored in the memory
of the indivdual is in direct
violation of RIAA rules and
international copyright laws."

When asked how the RIAA plans to
police the showers of people and
the response was "we have
our ways."

The first round of lawsuits
are plan to be disbursed in
the next month for people
who hum or whistle more then
4 songs in a week in their
showers.

Mr. Newhand went on to say
"If you hum, whistle or
sing copyrighted songs, we
will find you!"

When asked what the RIAA pans to
do with money collected as a
result of the lawsuits, this
is what they had to say.

"As you know, due to the
recent problems with copyright
violations, most artists you
hear today on the radio today
are on food stamps, welfare
or are homeless and on the
street", states Mr. Newhand.

"With the money we collect,
we plan on finding most of
these artists and offer
them a warm meal or two, perhaps
even help them get a place
to live. After we take our
cut and pay our lawyers, of
course."
Posted by webkrawlerr (4 comments )
Reply Link Flag
 

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