Court Ruling Protects Rights to Use Internet Anonymously

Dec. 19, 2003

Court Ruling Protects Rights to Use Internet Anonymously

Recording Industry Subpoenas of Music Downloaders Struck Down; Online Copyright Act Does Not Strip Rights of Innocent File-Swappers

WASHINGTON, D.C. – An Internet service provider (ISP) will not be forced to reveal the identities of two anonymous subscribers who downloaded massive amounts of copyrighted music. The decision by the U.S. Court of Appeals for the District of Columbia strikes down subpoenas issued by the Recording Industry Association of America (RIAA) compelling Verizon to reveal its customers’ identities, and is important because it protects the right of Internet users to use the Web anonymously.

Public Citizen had filed a friend of the court brief in May which argued that anonymous users must be given notice that their identity is being sought and be given the opportunity to defend their anonymity. Public Citizen made its argument because of its concern about the RIAA suit’s potential impact on free speech on the Internet. (Click here to view the amicus curiae brief.)

“In its attempts to learn the identities of two users, the RIAA’s arguments would have stripped the right to anonymous speech from thousands of people who share files in protected and legal ways,” said Paul Alan Levy, an attorney with the Public Citizen Litigation Group who wrote the amicus brief.

However, the Court did not have to address Public Citizen’s argument because it ruled that the Digital Millenium Copyright Act (DMCA) does not authorize an extraordinary procedure for subpoenas to identify members of the public who use an ISP to share files that apparently contain copyrighted music.

Although RIAA’s subpoenas were denied, it is not defenseless against the anonymous users who use of peer-to-peer file-sharing services to exchange copyrighted music. Copyright owners whose rights are violated can always sue the infringers – naming them as Doe defendants – and use the standard discovery procedures to identify the defendants, if – as RIAA has insisted in court filings – it can show that the shared music was copyrighted and that the exchange was not protected by any legal defenses. Using these procedures ensures that anyone who uses file-sharing services for innocent or protected purposes is not inadvertently swept into the net along with those who have infringed on copyrights.

If RIAA believes that this procedure is inadequate, it is incumbent on the RIAA to show why it cannot adequately protect copyrights from downloading and sharing, and it would be up to Congress to decide whether RIAA has made a good case for special protection. But if special protection is given to the RIAA, Congress should also ensure that the subpoena procedure protects the rights of the subscribers whose identities are sought, Levy said.

Over the past several years, it has become clear that the DMCA was drafted too hastily, and that in trying to solve some real problems, Congress may have created a monster that allows companies to invoke the copyright laws as an excuse for squelching protected dissent and competition. For example, the DMCA was recently used to intimidate critics of Diebold, which builds electronic voting systems, from revealing internal memoranda that showed possible flaws in the company’s products. It has also been used to prevent manufacturers from creating a secondary market for used toner cartridges and to discourage critics from discussing flaws in various kinds of software, Levy said.

In fact, under the DMCA, an ISP can be held liable merely because it is notified of a possibly infringing use, without protecting the right of a user to be heard before its material is taken offline. This “solution” to online copyright infringement also warrants reconsideration. If, RIAA feels the need to seek amendments to the DMCA, Congress should ensure that any changes produce a law that is fair to the public as well as to special industry interests.

Click here to view a copy of today’s ruling.

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