The music industrys subpoena deluge raining down on Internet service providers has sparked concerns about the wisdom of handing user identities and addresses to parties other than law enforcement. ISPs are growing worried that special subpoena powers could be abused, and providers could be caught in the position of revealing personal information to copyright holders with ill intent.
Under unique subpoena powers granted in the Digital Millenium Copyright Act of 1998, copyright owners do not have to file a lawsuit and receive a judges approval to obtain a subpoena. Instead they can certify that they believe a copyright infringement has occurred and obtain approval from a court clerk.
The Recording Industry Association of Americas heavy use its power this summer to pursue alleged illegal file-swappers raises new questions about the Act and how it is being interpreted. RIAA has issued an estimated 2000 subpoenas since July and filed 200 lawsuits since Sept. 8.
"How long do you see this litigation derby going on?" Sen. Ron Wyden, D-Ore., asked Cary Sherman, RIAA president, Wednesday. "How many suits will be enough? How many kids and grandmothers and the like are going to be chased down?"
Lawmakers generally do not want to begin mandating new digital protection rules, but the crusade launched this summer by the music industry puts them under growing pressure from constituents. The controversy is shaping up to pit consumers against industry, and, reminiscent of the debate over unsolicited commercial email, it leaves Congress squarely in the middle.
"Its spam days all over again," Sen. Conrad Burns, R-Mont., said at a hearing of the Senate commerce committee Wednesday morning.
ISPs also are caught in the middle, agreeing that copyright owners are entitled to protect their work, and at the same time arguing that Internet users have rights to privacy and due process under law. Unless safeguards are added to the process, it could result in personal harm to users, some say.
James Ellis, senior executive vice president and general counsel of SBC Communications Inc., told lawmakers Wednesday that he is worried about the implications for subscribers personal security, asserting that Internet stalkers, child molesters, domestic abusers "or some other wacko" could use subpoenas to track down victims.
The recording industry should have to file lawsuits to obtain subpoenas subject to judicial review, like anyone else, Ellis said. "Thats how its done—has been for generations," he said. "In this country theres a presumption of innocence until you have the evidence."
In response, Sherman said that RIAA collects evidence before going to a court clerk. "We issue the subpoena to see who the evidence is identifying," he said.
According to Sherman, shipments of recorded music have dropped precipitously in recent years and the root cause is Internet piracy. Litigation is just one piece of a series of strategies to force a "paradigm shift" in the way people obtain music, he said. He would not say how many lawsuit he expects RIAA to file.
The industry contends that privacy rights are not violated by the use of subpoenas because copyright holders are entitled only to the identity of alleged infringers. Further, Sherman told lawmakers, ISPs routinely share such information with marketing partners.
ISPs and privacy advocates take issue with the comparison, arguing that it is the correlation of identity with Internet use that violates privacy rights. The Center for Democracy and Technology in Washington has proposed a set of privacy safeguards, including requiring notice to alleged copyright infringers.
Calling the industrys special subpoena power "a very unusual authority and a dangerous precedent," Alan Davidson, associate director of CDT, said a notice requirement would allow alleged infringers to try to quash the subpoena.
Some lawmakers are urging the recording industry to accept a higher judicial standard and obtain a judges approval before issuing a subpoena. But the industry is not without its supporters on Capitol Hill.
"The only way to enforce the copyright on the net is to find out who is doing the stealing. We have to emphasize that stealing copyrighted work is not a victimless crime," said Sen. Barbara Boxer, D-Calif. "Jobs are being lost, folks."
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