RIAA: Shot Through the Heart?
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By Cynthia L. Webb, washingtonpost.com Staff Writer
The top brass at the Recording Industry Association of America (news - web sites) probably have "I Don't Like Mondays" on heavy rotation this morning, especially after a weekend where every story about their legal campaign against music piracy started off with words like "setback," "sharp blow," "struck down" and "stinging rebuke."
That's because a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled on Friday that the RIAA can't force Internet service providers to drop the dime on their customers who are suspected of illegally trading songs online.
The Washington Post took the "sharp blow" approach in its front-page story, while the Associated Press reported that "The ruling does not legalize distributing copyrighted songs over the Internet, but it will greatly increase the cost and effort for the Washington-based Recording Industry Association of America to track such activity and sue those who are swapping music online."
"Stinging rebuke" honors went to the the San Jose Mercury News editorial board, which opined today that the ruling "is also an invitation to Congress to fix copyright law not only to protect the entertainment industry but also consumers whose rights have been trampled." In a separate article on Saturday, the Mercury News said the ruling "means the secret identities of thousands of file swappers are safe for now."
• The Washington Post: Recording Industry Curbed On Music Suits
• The Associated Press via The New York Times: Record Industry May Not Subpoena Providers (Registration required)
• The San Jose Mercury News: Music File Swappers Prevail In Ruling
• The D.C. appeals court's ruling (PDF)
The Post provided more background on the case. "The ruling throws out two lower-court decisions that gave the Recording Industry Association of America (RIAA) the right to subpoena the names of thousands of suspected users of file-sharing software programs without first filing lawsuits," the Post reported, explaining that the RIAA used the 1998 Digital Millennium Copyright Act as a tool to slap consumers with subpoenas to gather evidence for file-swapping lawsuits. The RIAA has sued hundreds of file-swappers and used the threat of more suits to get people to switch from free file swapping to shelling out dough for music. More on the ruling's effects from the Post: "Consumer advocates and Internet providers hailed yesterday's ruling as an affirmation of privacy rights for Internet users in the face of a mass attack by a single industry. The recording association said it would not be deterred from protecting the business of its members and promised additional lawsuits, saying it would seek the names in a more time-consuming way," the newspaper reported.
The Merc's opinion piece said with the advent of the DMCA, Congress created a "streamlined subpoena process" and "understood that copyright holders need a quick and efficient way to counter electronic theft. But it wrote the digital copyright law in 1998, before the birth of Napster (news - web sites) and its file-sharing offspring. So it's not surprising the law no longer meshes with technology. Unless it wins on appeal, the recording industry will lobby Congress to extend the subpoena power to theft via peer-to-peer networks. Before it consents, Congress must add protections, including notifying the individual involved, requiring judicial review and imposing penalties for abuse," the paper wrote.
• San Jose Mercury News Editorial: Consider The Digital Consumer
Meanwhile, the ruling is "likely to hamper one of the industry's most important strategies: lawsuits against illegal file sharers," The Wall Street Journal said today. "The court struck down a lower court's ruling that had ordered Verizon Communications Inc. to turn over the identities of customers suspected of sharing music via Internet peer-to-peer services. The ruling will make it more cumbersome for the recording industry to learn the identities of major online music swappers -- and thus significantly impede the record labels' ability to quickly file large batches of lawsuits against these individuals," the newspaper reported today.
• The Wall Street Journal: Music Industry's Move Against Swappers Hits Snag (Registration required)
The Shape of Lawsuits to Come
Despite the legal indigestion, the ruling does not mean that the RIAA has to figure out a Plan B. "While the appeals court decision means nothing for those already sued, it does make it more difficult for the record industry to identify others it suspects of online piracy, said Megan Gray, a Washington, D.C., attorney who specializes in intellectual property. Before, under specific provisions of the law, music industry attorneys simply had to ask a U.S. District Court clerk to issue a subpoena - without requiring a judge's signature - to the ISP for the identity of anyone they suspected of copyright infringement," Newsday said.
The AP said "[l]egal experts said they did not expect the appeals ruling to affect 382 civil lawsuits the recording industry has filed since it announced its campaign six months ago. It also was not expected to affect financial settlements with at least 220 computer users who agreed to pay penalties from $2,500 to $7,500 each," the article said.
• Newsday: Court Win For Illegal Music Downloads
• The Associated Press via The New York Times: Record Industry May Not Subpoena Providers (Registration required) (Same link as above)
"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," CNET's News.com reported. "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," the news service reported.
• CNET's News.com: Court: RIAA Lawsuit Strategy Illegal
Another Brick in the Wall
The company behind Kazaa, one of the most popular file-sharing platforms on the Internet, can't be "held liable for copyright infringement of music or movies swapped on its free software, the Dutch Supreme Court ruled Friday," The Associated Press explained. "The news came on the same day a U.S. federal appeals court ruled that the recording industry can't compel U.S. Internet providers to reveal the identities of users believed to be illegally swapping music online."
• The Associated Press via The Seattle Post-Intelligencer: Court: Kazaa Not Responsible For Swapping
River Deep, Mountain High
In an article today, The Los Angeles Times writes that the rift between the recording industry and file-swapping sites like Kazaa and Gnutella (news - web sites) is widening. "The gulf between the labels and the companies behind Kazaa, Blubster and other file-sharing networks seems as wide -- and impossible to bridge -- as ever. Not only are significant business and legal hurdles in the way, but there's also an ocean of bad blood between the two sides," the paper said. "Label executives continue to hold hush-hush meetings with leading distributors of file-sharing software, trying to find common ground. But they also seethe at the companies' refusal to change their software in ways that might deter piracy, using words like 'extortion' and 'rape' to describe their situation. Said Cary Sherman, president of the Recording Industry Assn. of America: 'It reminds me of negotiating with the mob. 'If you just pay us some insurance, your storm window won't break anymore.' There's an emotional reaction to that.'"
• The Los Angeles Times: Participants' Distrust Exposed In Privacy Battle (Registration required)
