Anti-piracy crusade targets ISPs

Major music industry firms have dropped a suit to force ISPs to block access to an alleged pirate site, but the labels are far from abandoning the court in their crusade against unapproved downloads.

In fact, in another action, the Recording Industry Association of America Inc. (RIAA) is pushing for access to an ISP's records, trying to identify a customer the organization alledges was pirating copyrighted material. Both RIAA court actions reflect a renewed anti-piracy campaign that sucks service providers further into the fray, observers say.

Superfluous Suit

The recording industry organization and participating labels late on Wednesday withdrew their suit asking four major ISPs to block access to a file-downloading site. They backed off just five days after filing the complaint.

The RIAA says it dropped the suit because, the targeted China-based music-downloading site, has been inoperable since Sunday. Without a site, a suit isn't necessary, according to an RIAA statement, calling listen4ever's disappearance an "apparent response" to the group's anti-piracy efforts.

Some observers, even those opposed to the RIAA's actions, are surprised by the suit's withdrawal. It seems premature considering the case's recent filing and the site's unexplained disappearance, they say.

"It just doesn't make sense," says Chris Hoofnagle, legislative counsel with the Electronic Privacy Information Center. "Something is working behind the scenes."

But the RIAA was under no pressure to withdraw the suit and could have waited to see if the site remains down, noted Megan Gray, an independent technology and intellectual property lawyer formerly with O'Melveny & Myers, the firm that represented the recording companies. "I see no reason for the RIAA to dismiss the case right now," Gray says. O'Melveny & Myers declined to comment.

But the Electronic Frontier Foundation, which has opposed the suit, says the RIAA ultimately would have no choice but to drop its case if the site remained down, because there would be no one to sue.

"It was exactly the right thing to do in this case," says Cindy Cohn, EFF's legal director.

Tactic Scrutinized

Consumer rights organizations saw the RIAA's latest lawsuit as a dangerous precedent, even if it was a long shot. Thirteen recording companies sued AT&T Broadband Corp., Cable & Wireless USA, Sprint Corp., and WorldCom Inc.'s UUNet Technologies Inc. division last week, demanding the backbone providers block communications to and from servers run by Cable and Wireless wouldn't comment on the withdrawal, but a WorldCom representative says the company is pleased with the development.

Neither UUNet nor the other providers named in the suit have blocked the site, says Sudie Nolan, a WorldCom spokesperson.

Even the RIAA says it isn't sure why the site stopped functioning, but it is comfortable dropping its charges. Officials say they will sue again if the site simply changed its name or reappears on other servers.

Earlier this week, the site's administrator, writing from an e-mail account with the name Mike Smith, indicated that he didn't know why listen4ever wasn't working. "For some reason, the site is closed and will never come back," Smith wrote.

Although listen4ever was registered in China, the RIAA says that it targeted U.S. consumers since it was maintained in English and featured free music from top-selling U.S. artists.

"This particular network was a crass attempt to evade our copyright laws by setting up shop in China while offering a treasure trove of mostly American music," RIAA Chief Executive Officer Hilary Rosen says in a statement.

Another Attack

EFF's Cohn says she was pleased with the withdrawal, noting that if the RIAA won its claim, "we'd see the backbone providers flooded with requests to block IP addresses." The EFF and other groups called the initial action an unprecedented move to limit speech rights online and potentially shut down sections of the Internet.

But the RIAA is continuing to pressure an ISP on another front. Also this week, the RIAA asked a Washington, D.C., district court to enforce a subpoena request issued to Verizon Internet Services in July. The industry group wants to subpoena the identity of a person it alleges was pirating copyrighted material.

To expedite the process, the RIAA cited a portion of the Digital Millennium Copyright Act that lets it subpoena such information without actually filing a lawsuit. Verizon Communications Inc. has refused to comply, arguing that the person in question was not storing any of the allegedly pirated work on the company's servers, but rather on the customer's own hard drive.

Though Verizon says it usually complies with DMCA subpoena requests, it calls this request problematic, contending it skirts the emerging rules about when to notify customers of subpoenas, and when one can be issued.

Because this request involves a user's hard drive, it crosses a new line, according to Verizon. If the RIAA's claim is upheld, "all 70 million peer-to-peer users' names and identities could be turned over to the content community without any judicial process," says Sarah Deutsch, Verizon vice president and associate general counsel.

Rules about subpoenas in online lawsuits are still being formed. Though case law is developing that instructs courts about such subpoenas, DMCA subpoena rules are still uncertain, legal experts say.

The Verizon case may determine what the rules are for DMCA subpoenas, Gray says. "This is a whole new front in the subpoena wars."

Chiger writes for the Medill News Service. Scarlet Pruitt of the IDG News Service contributed to this report.

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