At a hearing of the U.S. Senate Commerce Committee Wednesday, Big Music squared off with ISPs on a bill that would modify how copyright owners can pursue digital pirates through the courts.
The bill, filed by Sen. Sam Brownback (R-Kansas), would require copyright holders to file a civil lawsuit before obtaining a subpoena to gather personal information on alleged music pirates from an ISP.
Currently, anyone claiming to be a copyright holder can obtain a subpoena to discover the name, address and telephone number of any Internet user alleged to be infringing a copyright. All the seeker needs to do is file a request with a court clerk, who is required by law to issue it.
“Congress hasn’t even given such broad powers to law enforcement investigating terrorism,” Verizon general counsel William P. Barr declared in a statement.
Opening Door to Criminals
“It opens the door to your identity to people with inappropriate or even dangerous motives, such as spammers, blackmailers, pornographers, pedophiles or stalkers,” Barr said.
He added that, according to the current process, there is no provison for consumers to receive notice of the subpoena before their personal information is turned over to a third party. Verizon, however, has turned over such information to its subscribers, andone of them has filed a lawsuit to stop the company from complying with a subpoena served on it by the Recording Industry Association of America (RIAA).
Verizon, too, has challenged the subpoena. Although initially rebuffed by a lower court judge, the company has appealed its case. Arguments in that appeal were aired before the U.S. Court of Appeals for the District of Columbia just hours before the Congressional hearings began.
A decision on that appeal is not expected until later this fall.
Privacy Issues Abound
Aside from copyright infringement issues, there are issues associated with privacy. The current law “raises serious privacy concerns for users, particularly as interpreted by the courts to date,” Center for Democracy & Technology associate director Alan B. Davidson said in a statement.
Greater judicial oversight is needed in this area, contends Wendy Seltzer, a staff attorney with the Electronic Frontier Foundation in San Francisco. “The courts can do that,” she told TechNewsWorld. “If they don’t do that, then we’ll need a legisltive fix.”
At the hearing, RIAA president Cary Sherman attacked ISPs, including Verizon. He argued that ISPs have failed to warn consumers about the dangers of piracy and have marketed broadband services like DSL as a means to quickly download music.
The Brownback bill being debated says an Internet access service cannot be compelled to make available the identity or personal information of a subscriber “except under a valid subpoena or court order issued at the request of the manufacturer or its representative in a pending civil lawsuit or as otherwise expressly authorized under the Federal Rules of Civil Procedure or the civil procedure rules of a State.”
Adding to Costs
The recording industry opposes the bill because it would add to the cost of enforcing its copyrights.
But bill supporters argue that the measure will protect innocent citizens by requiring a copyright holder to file a lawsuit before obtaining names. “In the course of the lawsuit, a copyright holder would have to swear under penalty of possible sanctions that they were in fact investigating copyright infringement, and the end user would have a chance to challenge that in court,” EFF’s Seltzer explained.
“I support any measure that preserves the rights and privacy of the individual as opposed to the abuse of the process by huge multinational corporations,” said Grokster president Wayne Rosso in an e-mail message. “Is an American citizen’s rights as granted by the constitution less important than the rights claimed by a massive, powerful, unsympathetic, monolithic company?”
Russo added that he cannot understand why content providers would rather sue consumers than provide their content at a reasonable rate. “I’d like to think that any reasonable person would rather make money from content as opposed to spending money on senseless litigation,” he said.
Earlier in the week, a poll released by Newsweek showed that 48 percent of music consumers who go online would be more likely to buy CDs than to download tunes from the Internet if the price of CDs were reduced by one-third.
That same survey indicated that the iron-fist approach to piracy adopted by the RIAA is having an impact on online music consumers. Since the association launched its sue-now-ask-questions-later campaign, 54 percent of poll respondents said they’d be less likely to download music in the future, although 42 percent said they would continue downloading music.
According to the Yankee Group, a Boston-based research firm, about 57 million Americans use file-sharing services. Among the most popular are Kazaa, Morpheus and Grokster.
The record industry claims that file sharing cost the industry more than US$1 billion in lost sales between 2000 and 2002.