RIAA SUBPOENA CAMPAIGN IS WORRISOME AND CONFUSING—ISP GROUP
RIAA, whose campaign to unearth identities of thousands of Internet file-swappers so it can sue them has prompted public furor, legal challenges and congressional scrutiny, heard Mon. from ISPs worried that record industry’s tactics would drive them out of business. In letter to RIAA Pres. Cary Sherman, telecom public policy advocate Net Coalition and 13 other ISPs and ISP associations posed series of questions they wanted RIAA to answer about process, procedure and justification for seeking thousands of subpoenas under Sec. 512(h) of Digital Millennium Copyright Act (DMCA). ISPs also requested meeting with RIAA to address “concerns and confusion” generated by “unprecedented legal initiative.”
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While ISPs support strong copyright protection, they said using DMCA subpoena process could have unintended legal and technical consequences. “Little is known or understood about this initiative, how individuals are being targeted, what is being done with the information, what is being done to facilitate compliance with subpoena requests and pay for the costs, how long this information will be kept and how it is being protected,” groups said. RIAA’s “extensive public relations campaign” has exacerbated confusion, they said, particularly its announcement that it might seek statutory damages of up to $150,000 per infringement.
Some of their concerns could be eased if RIAA shared more information about its campaign, ISPs said. Questions posed included: (1) What methods RIAA used to search for potential copyright infringers on peer-to-peer (P2P) networks. (2) Whether association was using “bots” or some other technology to search for word combinations that suggested presence of copyright materials. (3) Whether RIAA’s investigations also were targeting file-sharing that might be occurring via e-mail, instant messaging or other technologies. (4) What kind of “due diligence” RIAA performed to ensure accuracy of identification of possibly infringing file. (5) How RIAA interpreted DMCA requirement that it certify to ISP that it had “good-faith belief” that use of material in manner complained of hadn’t been authorized by copyright owner.
(6) What standard RIAA used to determine whether to seek subpoena and level of damages sought. (7) Whether RIAA had reached any agreements with ISPs for release of personal user information about alleged infringer without subpoena. (8) How many subpoenas RIAA had requested from clerk of U.S. Dist. Court, D.C., so far, and how many of those requests had been rejected and for what reasons. (9) How many lawsuits had been filed as result of subpoenas. (10) What steps RIAA was taking to protect personal information it captured. (11) Whether RIAA intended to reimburse ISPs -- particularly small ones - for cost of responding to subpoenas. (12) Whether -- and how -- RIAA intended to compensate people whose information was released by RIAA or who were wrongfully targeted.
Included in ISPs’s issues is one that appears to be gaining “legs” in debate. Under federal rules of civil procedure, they say, venue rules normally require subpoena to be issued from court where subpoenaed party resides. “As you know,” ISPs wrote, “Congress has made occasional exceptions to this requirement where it believes issues of vital national interest, such as combating terrorism, are involved. For example, the USA Patriot Act allows a federal court to issue a ‘roving subpoena,’ allowing a subpoena to be enforced in different jurisdictions.” Does RIAA believe it, too, has “roving” subpoena power? ISPs asked.
Just last week, Mass. federal court threw out RIAA’s DMCA subpoenas against Boston College and MIT, saying federal civil procedure rules didn’t permit subpoena issued in Washington, D.C., to be validly served in Mass. (CED Aug 12 p4). Issue is one of several raised by Pacific Bell Internet Services in lawsuit filed against RIAA in late July.
“We certainly agree with the logic” court used in Mass. cases, said spokesman for Pac Bell affiliate SBC Telecommunications. Pac Bell isn’t part of Net Coalition group, he said.
Adverse ruling won’t change RIAA’s course, spokeswoman told us. Virtually very other ISP and school that serves as ISP is complying with subpoenas, she said.
NetCoalition and ISPs said they were ready to work with RIAA to find “equitable balance among the rights of copyright owners, the interest of Internet companies who have done nothing wrong and the desire of millions of consumers who want to use this new medium to listen to their favorite artists. There has to be a better answer than litigation.”
RIAA welcomes opportunity to “sit down with anyone on the ISP community to discuss Internet piracy and how we can work together constructively,” RIAA spokeswoman said. Organization already has reached out to many ISPs to discuss issues, she said. “We look forward to dispelling some of the gross inaccuracies contained in the letter,” spokeswoman said.
Companies and organizations signing on to letter include Atlanta Broadband, Bway.net, Cal. ISP Assn., Ohio ISP Assn., The River, Shorecliff Communications/Broadband Wireless Business, Shreve.net, Thing.net, Tucows Inc., Va. ISP Assn., Wash. Assn. of ISPs, Wyo. ISP Assn.
NetCoalition, which recently consisted only of Bloomberg, NTT Verio and Yahoo, now has “dozens and dozens of new affiliated members,” Exec. Dir. Kevin McGuiness said. Issue is catching on, he said: “I think we're striking a chord out there, especially with small ISPs.”