RIAA stung by court ruling

A federal appeals court on Friday handed a major setback to the record industry's legal tactics for tracking down and suing alleged file swappers, in a high-profile case pitting copyright law against the privacy rights of internet users.

Reversing a series of decisions in favour of the Recording Industry Association of America (RIAA), the Washington, D.C., court said copyright law did not allow the group to send out subpoenas asking internet service providers for the identity of file swappers on their networks without a judge's consent.

The court wrote: "We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect those rights. It is not the province of the courts, however, to rewrite [copyright law] in order to make it fit a new and unforeseen internet architecture, no matter how damaging that development has been to the music industry."

While it is a blow to the recording industry, Friday's decision is unlikely to derail the RIAA's ongoing lawsuits against hundreds of individual file swappers. The ruling focuses on the unconventional subpoena power that the organisation had claimed in order to seek ISP subscribers' identities and does not address the legality of the lawsuits that have already been filed.

File swappers are generally anonymous on peer-to-peer networks, identified only by an Internet Protocol (IP) address assigned by their ISP. But names and addresses of subscribers can be determined by reviewing ISP records, which can connect IP addresses to individual accounts.

Even if the court's decision is ultimately upheld against appeals, the RIAA still will have the power to identify and sue file swappers.

The big difference, though, is this: The RIAA would have to file a "John Doe" lawsuit against each anonymous swapper, a process that would be considerably more labour-intensive and time-consuming. That in turn could limit the number of people the association has the resources to pursue.

Evan Cox, a copyright attorney with law firm Covington & Burling, said: "It is a pretty big setback. At the end of the day, it's a practical issue. It's mostly going to mean considerable extra expense and a fair amount of additional paperwork and formality."

The RIAA said it would continue its lawsuits against individual swappers, even if it is not able to use the subpoena power.

An RIAA executive said this new "John Doe" process would be more intrusive for individuals, not less, since the organisation would no longer be able to contact potential lawsuit targets and settle before filing an official suit. For several months, it has been sending letters to suspected file-swappers after obtaining their identities from ISPs and offering a settlement instead of going to court.

RIAA President Cary Sherman said in a statement: "This decision is inconsistent with both the views of Congress and the findings of the district court. It unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation. Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity."

John Borland writes for News.com