Friday, December 19, 2003

Record Industry May Not Subpoena Online Providers:
The industry's argument that the subpoena power could be applied to an Internet service provider "regardless of what function it performs," even if songs are only momentarily passing through its data pipes, "borders upon the silly."

"The recording industry cannot compel an Internet service provider to give up the names of customers who trade music online without judicial review, a federal appeals court in Washington ruled today.

The sharply worded ruling, which dismissed one industry argument by saying that it 'borders on the silly,' is a blow to the music companies in the online music wars. It overturns a decision in federal district court that favored the industry and ordered Verizon Communications to disclose the identity of a subscriber based on simple subpoenas submitted to a court clerk. "

The music industry has been struggling to counter an army of downloaders tens of millions strong who, beginning with the advent of Napster in the 1990's, have swapped songs online on so-called "peer-to-peer" networks without regard to the property rights of artists, composers and the companies that make the music.

In September, the industry began suing large-scale file swappers. In doing so, it used a controversial provision of the Digital Millennium Copyright Act of 1998, section 512 (h), to demand that the service providers reveal the identities of customers whose activities could otherwise be linked by the industry only to an identifier known as an Internet Protocol number.

The opinion, written by Chief Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit, did not strike down the new provisions of the copyright act on constitutional grounds. Instead, it said that the statute was applied incorrectly by the recording industry.

Under the terms of the law, the court said, subpoenas that the industry sent to Verizon demanding the identity of the file trader and the removal of infringing files could not be applied to the company when its customers were trading files on a peer-to-peer network. As an Internet service provider, or I.S.P., Verizon was "acting merely as a conduit" for the music files and did not store the data on its own computer network, Judge Ginsburg wrote. "A subpoena may be issued only to an I.S.P. engaged in storing on its servers material that is infringing or the subject of infringing activity."

Since the law requires a "takedown notice" that identifies the material that must be removed from the Internet, and since the material in question is not on the Internet service provider's own servers, "the R.I.A.A.'s notification identifies absolutely no material Verizon could remove or access to which it could disable," Judge Ginsburg wrote.

Although the recording industry argued that an Internet service provider can, in fact, remove the offending material by cutting off the subscriber's account, Judge Ginsburg wrote that "this argument is undone by the terms of the act," which clearly distinguished between blocking access to copyrighted files and cutting off the accounts of infringing users.

The industry's argument that the subpoena power could be applied to an Internet service provider "regardless of what function it performs," even if songs are only momentarily passing through its data pipes, "borders upon the silly," the judge wrote.

Such attempts by the industry to broaden the definition and role of Internet service provider, Judge Ginsburg wrote, must fail under the harsh light of careful statutory analysis. "Define all the world as an I.S.P. if you like, the validity of a 512(h) subpoena still depends upon the copyright holder having given the I.S.P., however defined, a notification" that is effective under other crucial provisions of the law, he wrote.…

http://www.nytimes.com/2003/12/19/technology/19CND-MUSI.html?pagewanted=all&position=

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