01.13.2004 12:00 PM
Originally featured on BroadcastEngineering.com
Court finds RIAA strategy violates privacy

A federal appeals court has dealt a major setback to the record industry’s hardball tactics for tracking down and suing alleged music file swappers.

In a high-profile case pitting copyright law against the privacy rights of Internet users, the Washington, D.C. court reversed a series of earlier decisions in favor of the Recording Industry Association of America (RIAA) that had allowed the organization to easily obtain subscriber information from Internet service providers.

The court found copyright law did not allow the RIAA to send out subpoenas asking Internet service providers for the identity of file swappers on their networks without a judge’s consent. The ruling deprived the record industry group of a fear tactic it has used to attempt to frighten Internet users from downloading music.

“We are not unsympathetic either to the RIAA’s concern regarding the widespread infringement of its members’ copyrights, or to the need for legal tools to protect those rights,” the court wrote. “It is not the province of the courts, however, to rewrite (copyright law) in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry.”

Experts said the 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.

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.

“It is a pretty big setback,” said Evan Cox, a copyright attorney with law firm Covington & Burling, in an interview with CNET. “At the end of the day, it’s a practical issue. It’s mostly going to mean considerable extra expense and a fair amount of additional paperwork and formality.”

The RIAA said it would continue its lawsuits against individual swappers, even if it is not able to use the subpoena power.

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