The recording industry can get its hands on the name of an Internet user who downloaded more than 600 songs in a single day, a federal judge has ruled.
Judge John D. Bates of the U.S. District Court for the District of Columbia on Tuesday ordered Verizon Internet Services to turn over the name of an individual music downloader to the Recording Industry Association of America Inc. (RIAA). The ruling is a victory for the record companies in their fight to control how music is downloaded from the Internet.
Verizon had refused to comply with a subpoena the RIAA had filed in July, asking for the name of the music fan, who had used the Kazaa peer-to-peer service. In a separate legal action, Kazaa is one of three P-to-P services targeted by the recording and movie industries in a lawsuit aimed at shutting down unauthorized file-sharing services.
Under the Digital Millennium Copyright Act (DMCA), copyright holders are allowed to request subpoenas for information on infringers without taking further legal action, such as filing a lawsuit.
Verizon argued that Internet service providers are exempt from those provisions of the DMCA. Sarah B. Deutsch, vice president and associate general counsel for Verizon, said the company will appeal the decision. The ruling has " troubling ramifications" for computer users, service providers and the Internet, she said in a statement. The ruling opens the door for anyone who makes a copyright infringement claim to gain access to private subscriber information, Deutsch added.
The RIAA also issued a statement attributed to its president, Cary Sherman, saying the industry group looks forward to contacting the Verizon subscriber "so we can let them know that what they are doing is illegal."
The RIAA filed a motion Aug. 20 in an attempt to enforce the subpoena against Verizon Internet Services.
In the motion, the group said it provided to Verizon a "list of literally hundreds of infringing works that were being offered for download by Verizon's subscriber and the identification of the specific location from which the alleged infringer was operating," in this case the IP address of the Verizon subscriber.
Verizon lawyers argued that the DMCA's subpoena section doesn't address the Internet service provider, which didn't have the copyrighted songs stored on any of its computers. It only applies to the customer who owned the computers where the songs were stored. Several privacy groups, including the Electronic Privacy Information Center, have sided with Verizon in the case by focusing on the First Amendment right to anonymous speech.
However, Bates wrote that he saw no connection between music downloading and free speech, and he ruled that the DMCA's subpoena section is written broadly enough to allow copyright holders to include ISPs when they go digging for identities of copyright infringers. He noted that Verizon also refused to kill the customer's Internet service.
Bates wrote that Verizon's reading of the DMCA wouldn't allow copyright holders to identify people downloading music from peer-to-peer services. "There is little doubt that the largest opportunity for copyright theft is through peer-to-peer software, as used by the alleged infringer here," Bates wrote in his opinion. "(Verizon's argument) would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish."
ISPs may be concerned about this decision, because such subpoenas now could be obtained more easily, without copyright holders having to file lawsuits, said David Hayes, chairman of the intellectual property group of the San Francisco law firm Fenwick and West LLP. ISPs could face privacy lawsuits from subscribers if this ruling holds up, Hayes said.
"The copyright holders will be thrilled with this, because it gives them a powerful weapon to do investigations and learn the identities of infringers," he said.