Late last week, 13 record labels filed a federal lawsuit in New York, seeking a judicial order to force four major Internet backbone providers — AT&T, Cable and Wireless, Sprint, and UUNet — to block American access to a Chinese website that allows users to freely download copyrighted music. After all, the record labels argued, Napster was shut down by a court order and to their minds this was far worse.
Citing a provision of the Digital Millennium Copyright Act (DMCA) that allows a court to order Internet service providers to block infringing offshore websites, the record labels clearly have no clue about how easy it is for a single website to change its IP address.
The Recording Industry Association of America (RIAA) was quick to come to the aid of the record labels, filing suit against the various Internet backbone providers. They were late to the party, however, as the Chinese website was unreachable within a day of the news of its existence breaking in the mainstream media.
In response, Information Wave Technologies, a New Jersey-based Internet service provider, announced on 19 August that it would block RIAA access to its network while simultaneously blocking Information Wave customers’ access to the RIAA website. Citing the RIAA’s announced plans to access the computers of individuals engaged in file sharing to protect its members’ copyrighted assets, Information Wave announced its policy as a precautionary measure to protect its customers.
Information Wave went even further by announcing it would deploy popular file-sharing clients on its honeynet. The file-sharing clients would hopefully attract RIAA cracking activities by seeding random files with popular music titles. “Clients which connect to our peer-to-peer clients, and then afterwards attempt to illegally access the network will be immediately blacklisted from Information Wave’s network,” the news release stated. “The data collected will be actively maintained and distributed from our network operations site.”
On 20 August, the US Justice Department announced that it is prepared to prosecute individuals engaging in illegal file-sharing of music and movies. Many observers feel that the move is in response to pressure from Congress to use the No Electronic Theft (NET) Act against the file-swappers. The 1997 law, signed by President Clinton, makes it a federal crime to share copies of copyrighted material with anyone if the value of the material is more than US$1,000.
“A lot of people think these activities are legal, and they think they ought to be legal,” John Malcolm, deputy assistant attorney general, told the Progress and Freedom Foundation‘s Aspen summit on technology and politics. “There does have to be some kind of a public message that stealing is stealing is stealing.” Malcolm and representatives from the entertainment industry maintained that civil remedies for copyright infringement weren’t enough. “Civil remedies are not adequate,” Malcolm said in his Aspen address.
Feeling its oats after Malcolm’s address, the RIAA dropped its lawsuit against the Internet backbone providers and, in a change of strategy, asked a Washington, D.C. federal court to order Verizon Communications to disclose the name of a Verizon customer suspected of illegally trading music on the Internet. Verizon, citing potential legal liability associated with invading the privacy of one of its customers, reluctantly refused to comply with an RIAA subpoena in July.
Under a provision of the DMCA, a copyright owner can subpoena an Internet service provider for information about a subscriber. The provision allows for an expedited subpoena process, eliminating the need to file a lawsuit. The “safe harbor” provision of the DMCA protects Internet service providers from liability for their subscribers’ illegal behavior, but only if the service provider is unaware of the illegal behavior. In this case, the RIAA argued that Verizon knew of its subscriber’s illegal behavior because of the subpoena. The trial judge agreed, ordering Verizon to disclose its subscriber’s name.
This sets a dangerous precedent. All a copyright owner need do is file a subpoena under the expedited provisions of the DMCA and the alleged infringer is named and considered guilty until proven innocent.