Content cops: three billion files are being downloaded monthly through the most popular P2P networks. Should carriers be responsible for stemming the piracy flood?

America's Network, August 1, 2003 by Shira Levine

The music industry is in trouble, and it has the Internet to blame. According to the Recording Industry Association of America, music sales declined approximately 11% in 2002 and 10% in 2001. File-sharing programs such as Kazaa, Grokster and the now-defunct Napster have made the exchange of music, video and software easier than going to the store and buying it legally, and new high-speed connections make file-sharing faster than ever. Apparently, there is a dark side to broadband.

The decline in music sales isn't due to any lack of effort on the part of the RIAA. "We've been trying for years to educate individuals that they shouldn't engage in this behavior, and yet we've been unsuccessful, in large part because they view it as only a threat, with no potential repercussions," says Matt Oppenheim, senior vice president for business and legal affairs at RIAA. "No one has been enforcing the rights."

Not for much longer. The music industry intends to change that situation by cracking down hard on individuals, filing lawsuits against the heavy users of the file-sharing programs."We've been left very little options," Oppenheim says. "We would rather not be at this point, but we are, and we have to do what we have to do. Nobody would tell a department store not to prosecute its shoplifters."

But the shoplifting scenario isn't an entirely accurate analogy. RIAA's software scans the directories available to users of peer-to-peer networks, searching for users offering to distribute copyrighted music files. To identify an individual file sharer's name and address, however, the association needs the user's Internet service provider to release that information, which has raised red flags among privacy advocates.

THE COPYRIGHT ACT

The content and ISP industries attempted to reconcile their differences with the Digital Millenium Copyright Act, passed in 1998 (see page 26). The DMCA limits the copyright infringement liability to service providers in certain circumstances, such as when the ISP is only acting as a conduit for illegal material, or is unaware of any infringing material being stored on its servers. The law also defines expedited procedures for copyright owners to obtain subpoenas for the identification of subscribers who post infringing material.

The DMCA seemed to resolve the digital copyright debate--until last summer, when RIAA issued Verizon a subpoena, asking for the identity of subscribers who were allegedly offering free illegal downloads of music (see timeline at left). Verizon refused, arguing that it was not compelled to release that information because the pirated songs were not stored on its servers.

"I was one of the people in the room with the recording industry, negotiating this section of the DMCA, and there was a distinction between when the service provider serves as a conduit or pipe, and when the service provider hosts material," says Sarah Deutsche, vice president and associate general counsel at Verizon. "When we host material, there was clearly an agreement that we would take responsibility for removing infringing material from our network. When we act as a conduit, though, we're not supposed to be interfering with private communications between third parties. We're simply the pipe."

Deutsch also argues that the recording industry is misusing the subpoena process. "The recording industry is saying if they fill out a one-page form claming to be a copyright owner, they can give that form to a clerk of the court, not a judge, and they're entitled to get someone's identity through this expedited shortcut," she says. "They cooked up this process. We thought it would only be used to sue people whose material had been taken down--we never thought they would try to expand it."

But Oppenheim believes the law is squarely on the copyright holders' side, and he questions the merit of Verizon's objections. "ISPs have been responding to our requests without problems or questions, until now," he says. "If we were to file a traditional lawsuit and issue a traditional subpoena, we wouldn't even need to go to a law clerk--any attorney or member of the bar can issue it. If you look at whether a civil lawsuit or the DMCA provides greater protections to the ISP and the ISP user, it's very clear it is the DMCA. The law has built-in protections that are more onerous to a copyright holder than traditional litigation. We need to go through many hoops to make sure we are properly targeting people for a limited purpose."

Verizon lost its case in District Court earlier this year, but the fight isn't over yet--neither for Verizon, which says it is prepared to go all the way to the Supreme Court, if need be, nor for the fundamental debate over who is responsible for the illegal transmission of digital content. The crafters of the DMCA may have hoped that the law would resolve any conflicts between service providers and content providers, but it appears that the battle has only just begun.

"There will be lawsuits and bloodshed and college students dragged out of their dorm rooms by RIAA lawyers," says Talal Shamoon, CEO of Intertrust, a developer of digital rights management solutions.