Music industry under fire for MP3 download assault

By Declan McCullagh

A US federal law being used by the recording industry to unmask a suspected Kazaa music-trader is unconstitutional, a coalition of non-profit groups said late last Friday.

A dozen consumer and privacy groups filed a brief in a Washington federal court arguing that the Recording Industry Association of America's (RIAA) request for information about a Verizon Communications subscriber should be denied. Verizon has opposed the request on procedural grounds.

The 30-page brief says the RIAA is relying on a portion of the controversial Digital Millennium Copyright Act (DMCA) that violates Americans' right to be anonymous online. "Purported copyright owners should not have the right to violate protected, anonymous speech with what amounts to a single snap of the fingers," the brief said.

Groups signing the brief include the Consumer Alert, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and National Consumers League.

Until now, the entertainment industry has relied on civil lawsuits aimed at corporations, not individuals, to limit widespread copyright infringement on peer-to-peer networks. Now, however, the RIAA is revising its strategy and appears ready to sue individuals swapping songs over the internet.

At issue in the RIAA's request is an obscure part of the DMCA that permits a copyright owner to send a subpoena ordering a "service provider" to turn over information about a subscriber.

Both Verizon and the groups signing the brief agree that the RIAA has the right to unmask a true copyright infringer. "Common civil procedure rules have long provided routes for obtaining such information," the brief says.

If copyright owners used the DMCA's subpoena process to assail peer-to-peer pirates, the brief says, the combined number of notices and subpoenas that internet providers would have to process could easily reach into the millions annually.

"We want the court to determine that the subpoena provision in the DMCA does not apply when the internet service provider is merely acting as a conduit," said Megan Gray, an attorney who wrote the brief.

Verizon says it complies with requests regarding material that customers store on its servers. But because these allegedly illicit files reside on a peer-to-peer node, the company says, this is a novel situation and a DMCA subpoena is not sufficient.

"Verizon looked carefully at the subpoena. This is different from anything they had sent us in the past," Sarah Deutsch, a vice president at the telecommunications company, said last week.

The RIAA could not immediately be reached for comment. The trade association's response brief is due next week.

Declan McCullagh writes for News.com