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Appeals Court Rejects Industry Attempts to Identify Music Downloaders

The Recording Industry Association of America, a trade group representing the $15 billion U.S. music and recording industry, has sought to force Verizon Communications, Inc. and other Internet service providers (ISPs) to provide the names of customers suspected of distributing copyrighted music over the Internet without permission.

The three-judge panel from the U.S. Court of Appeals for the District of Columbia overturned an earlier ruling by a trial judge who approved the RIAA’s subpoenas that mandated Verizon to turn over names and addresses for at least four of its Internet customers. Since then, Verizon has identified dozens of its other customers upon the music industry’s request.

The appeals court said one of the arguments by the RIAA “borders upon the silly,” rejecting the trade group’s claims that Verizon was responsible for unauthorized downloaded music because such data files travel over its network.

“In sum, we agree with Verizon that (the law) does not by its terms authorize the subpoenas issued here,” Chief Judge Douglas Ginsburg wrote.

The court wrote that the 1998 Digital Millennium Copyright Act, passed years before swapping music files over the Internet grew popular, “betrays no awareness whatsoever that Internet users might be able directly to exchange files containing copyrighted works.”

The appeals judges acknowledged the hard impact on the recording industry, noting “stakes are large.” But the judges said it is not the job of the courts to rewrite a 1998 copyright law, “no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries.”

Verizon challenged the constitutionality of turning over the names of its subscribers to the RIAA, arguing that the copyright law does not require it to reveal customer’s identities without a lawsuit.

The RIAA was able to obtain the identities of suspected pirates from Verizon and other ISPs through the DMCA’s “expedited subpoena” provision, which allows copyright holders to issue subpoenas without judicial approval or notifying the alleged infringer in advance.

“This decision (today) removes the threat of a radical, new subpoena process that empowers copyright holders or anyone merely claiming to be a copyright holder to obtain personal information about Internet users by simply filing a one-page form with a court clerk,” said Verizon’s lawyer, Sarah Deutsch.

“Verizon is definitely interested in working with all of the copyright community in finding ways to stop piracy, but we have to do it in a way that supports the balance between users’ rights and the rights of the copyright holder,” Deutsch added.

The ruling means that the recording industry will have to file copyright lawsuits against anonymous “John Doe” defendants, based on their Internet addresses, then work through the courts to learn their identities. These extra steps could make the process of identifying suspected pirates for future lawsuits more costly and time consuming.

RIAA President Cary Sherman said the ruling “unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation.”

Sherman promised to “continue to defend our rights online on behalf of artists, songwriters and countless others involved in bringing music to the public,” according to the Associated Press.

The RIAA reached out-of-court settlements with some 220 Internet users after monitoring their activity online and compelling Internet providers to turn over their names.

“Internet users are the winners in the Verizon case,” said Electronic Frontier Foundation Staff Attorney Wendy Seltzer in a statement. “The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan.”

RIAA members count among some of the biggest players in the music industry including Vivendi’s Universal Music Group, Time Warner Inc.’s Warner Music, EMI Group, Sony Corp.’s Sony Music and Bertelsmann AG’s BMG.

The 1998 digital copyright law amended existing U.S. copyright laws to protect copyright owners from online theft and to shield Internet Service Providers from certain liabilities, as an incentive for them to embrace the World Wide Web.

Verizon had originally argued that Internet providers should only be compelled to respond to such subpoenas when illegally distributed music is stored on computers that providers directly control, rather than on a subscriber’s personal computer.

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