TCS Daily

When the Music Stops

By Sonia Arrison - February 7, 2003 12:00 AM

Last week marked another stage in the battle between Hollywood and the technology industry when Verizon Communications appealed a judge's order to reveal the identity of an alleged music pirate to the Recording Industry Association of America (RIAA). The legal skirmish highlights the music industry's resolve for old business models and points to some flaws in the Digital Millennium Copyright Act (DMCA).

On January 21, 2003, U.S. District Judge John Bates ruled that the DMCA requires Verizon's Internet service division to give the RIAA the name of a Kazaa subscriber who allegedly shared hundreds of music recordings.

Verizon claims that the DMCA does not apply to ISPs when the alleged copy-infringing material resides on a user's hard drive (as opposed to a web site that the ISP hosts) and that releasing the name in this way infringes on user privacy.

If Judge Bates's decision stands, anyone who claims copyright infringement can fill out a simple form, give it to a court clerk (not a judge), and bingo - they get information such as the name, home number, and address of any Internet user. This is worrisome for several reasons.

"The subpoenas will become a new form of spam," argues Peter Swire, law professor and former Chief Counselor for Privacy in the U.S. Office of Management and Budget. Swire warns that "fraudulent subpoenas will be easy to file, with no judicial oversight."

This could lead to a situation where ISPs are inundated with requests. And unscrupulous web sites, identity thieves, or even stalkers could exploit the process to get information about an Internet user. There's another problem too - the ability to easily identify Internet users could have a chilling effect on speech.

Consider the Harry Potter debacle when, in December 2001, Warner Brothers sent ISP UUNET a notice asking it to disable a user's Internet access and account because he or she was allegedly infringing on the "Harry Potter" copyright. The request was based on a 1k file titled "Harry Potter Book Report."

Clearly, Warner Brothers didn't pay much attention to whether or not its claim had any validity, as an electronic movie file would be much larger than 1k and the title "book report" is a clue as to the real contents of the file.

As long as copyright holders have nothing to lose in filing the requests, which can be done in large part by automated robots that scour the web for certain file names like "Harry Potter" or "George Harrison," thoughtless, privacy-infringing, and harassing requests will continue. If the DMCA allows the music industry and others this type of unsupervised investigative power, even worse scenarios can be envisioned.

For instance, imagine if a political group organizes a meeting to be held in Chinatown and distributes agenda items or video clips of its president using a peer-to-peer network. If the copyright holder of the movie "Chinatown," starring Jack Nicholson, happens to see this "Chinatown" file, they could file a subpoena for the user's information, unnecessarily invading privacy and eventually curtailing speech.

These problems obviously do not negate the fact that intellectual property is important and that stealing it is wrong. The question here is: what is the best way to stop thieves? The music industry apparently believes that harassing its own customers will be effective.

Many of Hollywood's suspected Internet pirates are also paying customers in real space, prompting singer-songwriter and nine-time Grammy nominee Janis Ian to write that if the judge's ruling in the Verizon case stands, many musicians "will be pushed out of the music business altogether."

Rather than focusing so much attention on prosecution, the entertainment industry should spend time promoting its own online services. Even if songs can be found for free on the Net, it takes time and effort to find them. If consumers had an easy place to get reliable music files at market prices, it stands to reason that many would go there instead of wasting time looking for free files and becoming thieves.

The new site that Virgin Megastore and Tower Records recently launched is a start, but there's more work to do. In the meantime, if the record industry is convinced that it has identified a music pirate, it should have to go through the same process as everyone else who wants to discover the identity of an online infringer: file a John Doe suit.

Sonia Arrison is director of the Center for Technology Studies at the California-based Pacific Research Institute.

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