LAWYERS, START YOUR ENGINES

There are few times in life when you wish you’d stayed awake in Civics class. This isn’t one of them. Two branches of government are occupying their time as a result of the RIAA’s campaign to stop file swapping with the forced assistance of internet service providers.

Verizon Communication is today asking the U.S. Court of Appeals for the District of Columbia Circuit to overturn a ruling against it in the RIAA’s request for customer names. The RIAA subpoenaed Verizon for the names under the 1998 Digital Millennium Copyright Act and Judge John D. Bates approved using the subpoenas to hand over the names of at least four Verizon internet subscribers.

The law allows media companies to get subpoenas from any U.S. District Court clerk’s office to force ISPs to hand over customer names of suspected pirates. A judge’s signature is not required. The RIAA has sent out at least 1,5000 subpoenas in its campaign targeting individual suspected illegal file-swappers.

Verizon argued unsuccessfully that ISPs should hand over names only when its customers are storing the pirated files on computers directly controlled by the companies, such as websites. It also argued that the subpoenas should follow “John Doe” civil suits. The original judge said that Verizon had a “strained reading” of the law and said it would leave a big hole in Congressional effort to stop copyright infringement on the net.

Despite that ruling, one of Verizon’s fellow ISPs, SBC, has refused to answer any of the approximately 300 subpoenas it has received. SBC is the only major ISP to refuse to name names of customers suspected of illegally swapping files. Going on the offensive, SBC has sued the RIAA in California. SBC general counsel James D. Ellis told the New York Times, “We are going to challenge every single one of these that they file until we are told that our position is wrong as a matter of law.” Ellis is testifying Wednesday about the copyright subpoenas before the Senate Commerce Committee.

Also happening in D.C., just ahead of the hurricane, Senator Sam Brownback (R-KS) is planning to introduce his Digital Consumer Internet Privacy Protection Act, which would protect ISPs from those kinds of subpoenas. The bill would block the subpoenas except in pending civil suits or where illegal files were stored on company-controlled websites.

During a Senate hearing last week Sen. Orrin Hatch (R-UT) said that it was too early to change the DMCA. And he’s the chairman of the Senate Judiciary Committee, so what he says is important.

Said Hatch, “These issues have not ripened enough. I don't think we can yet determine if these subpoenas are being used responsibly to identify alleged infringers. What's the hurry? It's not like it's affecting real people.”

Mr. Kober, if you’re out there, you were right; we did need to know that stuff some day.