US DOJ backs record industry in asking for name of downloader

The U.S. Department of Justice (DOJ) has sided with the recording industry in a lawsuit attempting to get Verizon Internet Services to release the name of a music downloader, the second time it has been taken to court for that purpose in recent months.

On Friday, the DOJ filed a brief in support of the Recording Industry Association of America's (RIAA's) case before the U.S. District Court for the District of Columbia in which the recording industry group argues that the Digital Millennium Copyright Act (DMCA) gives it the authority to subpoena the name of a frequent music downloader using the Kazaa peer-to-peer service.

Verizon is "disappointed" by the DOJ's brief but the agency's defense of a U.S. law was expected, said Sarah Deutsch, vice president and associate general counsel for Verizon Communications.

Verizon is fighting a subpoena of the downloader's name, and in February filed a motion to quash the subpoena. In January, Judge John D. Bates ruled that Verizon must turn over the name of another customer, who allegedly illegally downloaded 600 songs in one day, and Verizon is in the process of appealing that decision.

"They keep serving us with subpoenas, and we keep saying, 'Wait, the issue has to be decided by the court,'" Deutsch said of the second subpoena.

The DOJ argues in its brief that the section of the DMCA that requires Internet service providers to turn over names of alleged infringers applies to Verizon in this case. The DOJ argues that Verizon, in challenging the subpoena on grounds that it would limit anonymous free speech, is off the mark. "Here, it is manifest that the DMCA's subpoena provision targets the identity of alleged copyright infringers, not spoken words or conduct commonly associated with expression," the DOJ brief says.

But Deutsch said the DMCA, which allows court clerks to issue subpoenas without requiring copyright holders to file lawsuits, violates the U.S. Constitution's prohibition of using court powers without a pending case or controversy. The case could also open up all kinds attempts from people like stalkers or pedophiles to claim copyright violations as a way to discover Internet users' identities, and the company is fighting the subpoenas because of the privacy concerns the DMCA raises, Deutsch said.

"If the case was just about copyright, it probably would be over a long time ago," Deutsch said. "It just makes sense that people will be able to abuse this process."

But the DOJ, in its brief, countered that enough safeguards exist in the DMCA because copyright holders must have a "reasonable showing" that the person they're after has violated copyright laws.

But Deutsch said the RIAA is using this subpoena section to intimidate file traders without the burden of filing a lawsuit, like Internet service providers must do when they want the name of a spammer. "The RIAA, in its haste to solve its particular business problem, is running roughshod over users' basic privacy and safety rights," she added.

A DOJ spokesman said the agency would have no comment beyond the brief. The RIAA issued a written statement attributed to Matthew Oppenheim, its senior vice president of business and legal affairs. "The government's filing today supports the proposition that we have long advocated -- copyright owners' have a clear and unambiguous entitlement to determine who is infringing their copyrights online, and that entitlement passes Constitutional muster," Oppenheim said in the statement. "Verizon's persistent efforts to protect copyright thieves on pirate peer-to-peer networks will not succeed."

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Grant Gross

IDG News Service
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