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Subpoenaed Identities of Music Sharers Could Threaten Internet Speech Rights

May 16, 2003

Subpoenaed Identities of Music Sharers Could Threaten Internet Speech Rights

Court Should Follow Process to Weigh Rights of Recording Industry Against Rights to Online Anonymity, Public Citizen Says

WASHINGTON, D.C. — The Recording Industry Association of America (RIAA) has not shown why a court should bypass legal processes that protect the right to speak anonymously on the Internet, or why the court should permit the association to learn the names of users who illegally downloaded copyrighted music files, Public Citizen said in a brief filed today with the U.S. Court of Appeals for the District of Columbia.

In June 2002, the RIAA obtained two subpoenas compelling Verizon, an Internet service provider, to disclose the identities of two anonymous subscribers who had each been making hundreds of copyrighted recordings available through the peer-to-peer file-sharing system KaZaA to fellow KaZaA users. Verizon objected to the subpoenas, but a judge for the U.S. District Court for the District of Columbia ruled in January and again in April that Verizon must reveal the subscribers’ identities. Verizon has appealed that ruling.

RIAA obtained its subpoenas under the Digital Millennium Copyright Act (DMCA) of 1998, a law Congress passed to address rising concerns over the illegal downloading and sharing of copyrighted, online material. Verizon’s appeal contends that the provision in the DMCA allowing subpoenas is unconstitutional.

In its friend of the court brief, Public Citizen argued that although the activities of the two subscribers were apparently illegal and the court was entitled to order Verizon to disclose their identities, that was only because the court required notice to the subscribers who chose not to defend their anonymity. And, because the DMCA allows courts to require such notice, the law complies with constitutional due process.

“Courts across the country have helped to establish ‘John Doe’ procedures, which help to ensure that identities are not given out indiscriminately. This court should hold both RIAA and Verizon to those procedures,” said Paul Alan Levy, a Public Citizen attorney who wrote the brief. “Even if the people’s identities are eventually disclosed, it would be a dangerous precedent to ignore the established processes.”

In its arguments, RIAA reasoned that the “John Doe” procedures were not needed because there is no First Amendment protection if a copyright infringement is involved. However, no court had determined that any copyright violations had occurred at the time the subpoena was issued. A multi-part test gives anonymous speakers the opportunity to contest allegations before their rights to anonymity are permanently breached.

Courts apply a five-part test before compelling disclosure in many cases of anonymous online speech, requiring, among other things, that the speaker be given notice that his or her identity is being sought, that the statements supporting disclosure are quoted exactly, and that the right to identify the speaker outweighs the right to speak anonymously. The same procedures apply under the DMCA, Public Citizen argued.

One vital step in the procedure, which was met in this case, is that the anonymous user be notified that his or her identity is being sought. The court should instruct district courts to require such notice at the beginning of any similar case, thereby allowing speakers to obtain an attorney and prepare a defense.

RIAA has indicated that it will seek many subpoenas similar to the ones at issue here, and in many cases, the copyright issues will not be as clear. For this reason, it is essential that the court ensure that the DMCA is not abused or applied in a way that is inconsistent with the law’s original intent, Levy said.

Click here to view a copy of the brief on the Web.