FC: Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU

[Declan McCullagh <declan () well com>]

---

Date: Fri, 16 May 2003 13:13:07 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>

Public Citizen is filing a brief today in RIAA v. Verizon Internet
Services.  We are not joining the EFF, ACLU and others in arguing that
the order enforcing the subpoenas should be reversed.  There are two
reasons for that.

First of all, we think the chances of getting the DMCA declared
unconstitutional are small, and the statute can be construed to require
the application of the familar balancing test for which we have been
successfully arguing in several cases around the country -- that is, you
notify the anonymous speaker, require evidence of wrongdoing, and then
give the anonymous speaker the chance to show she did nothing wrong.
Second, on the facts of these cases, it's pretty clear that we have a
flagrant copyright infringement - - each subscriber made hundreds of
songs available for download, and it is pretty hard to construct a fair
use dfense for that.  Notice was given (althoug it was given late in the
case) but the anonymous users chose not to defend themselves.

In fact, RIAA chose two test cases where the facts overwhelmingly favor
enforcement of the subpoena, and although we can respect Verizon for
standing up for its subscribers, it might well have chosen a better
vehicle for its arguments by waiting until RIAA sent it questionable
subpoenas.

Our press release follows; the brief can be found on our web site.

For Immediate Release:    Contact: Paul Alan Levy (202) 588-1000
May 16, 2003       Shannon Little (202) 588-7742

Subpoenaed Identities of Music Sharers Could
Threaten Internet Speech Rights

Court Should Follow Process to Weigh Rights of Recording Industry
Against Rights to Online Anonymity, Public Citizen Says

 WASHINGTON, D.C. - The Recording Industry Association of America
(RIAA) has not shown why a court should bypass legal processes that
protect the right to speak anonymously on the Internet, or why the court
should permit the association to learn the names of users who illegally
downloaded copyrighted music files, Public Citizen said in a brief filed
today with the U.S. Court of Appeals for the District of Columbia.

 In June 2002, the RIAA obtained two subpoenas compelling Verizon, an
Internet service provider, to disclose the identities of two anonymous
subscribers who had each been making hundreds of copyrighted recordings
available through the peer-to-peer file-sharing system KaZaA to fellow
KaZaA users. Verizon objected to the subpoenas, but a judge for the U.S.
District Court for the District of Columbia ruled in January and again
in April that Verizon must reveal the subscribers' identities. Verizon
has appealed that ruling.

 RIAA obtained its subpoenas under the Digital Millennium Copyright Act
(DMCA) of 1998, a law Congress passed to address rising concerns over
the illegal downloading and sharing of copyrighted, online material.
Verizon's appeal contends that the provision in the DMCA allowing
subpoenas is unconstitutional.

In its friend of the court brief, Public Citizen argued that although
the activities of the two subscribers were apparently illegal and the
court was entitled to order Verizon to disclose their identities, that
was only because the court required notice to the subscribers who chose
not to defend their anonymity. And, because the DMCA allows courts to
require such notice, the law complies with constitutional due process.

 "Courts across the country have helped to establish 'John Doe'
procedures, which help to ensure that identities are not given out
indiscriminately. This court should hold both RIAA and Verizon to those
procedures," said Paul Alan Levy, a Public Citizen attorney who wrote
the brief. "Even if the people's identities are eventually disclosed, it
would be a dangerous precedent to ignore the established processes."

 In its arguments, RIAA reasoned that the "John Doe" procedures were
not needed because there is no First Amendment protection if a copyright
infringement is involved. However, no court had determined that any
copyright violations had occurred at the time the subpoena was issued. A
multi-part test gives anonymous speakers the opportunity to contest
allegations before their rights to anonymity are permanently breached.

 Courts apply a five-part test before compelling disclosure in many
cases of anonymous online speech, requiring, among other things, that
the speaker be given notice that his or her identity is being sought,
that the statements supporting disclosure are quoted exactly, and that
the right to identify the speaker outweighs the right to speak
anonymously.  The same procedures apply under the DMCA, Public Citizen
argued.

 One vital step in the procedure, which was met in this case, is that
the anonymous user be notified that his or her identity is being sought.
The court should instruct district courts to require such notice at the
beginning of any similar case, thereby allowing speakers to obtain an
attorney and prepare a defense.

 RIAA has indicated that it will seek many subpoenas similar to the
ones at issue here, and in many cases, the copyright issues will not be
as clear. For this reason, it is essential that the court ensure that
the DMCA is not abused or applied in a way that is inconsistent with the
law's original intent, Levy said.

 A copy of the brief is on the Web at
http://www.citizen.org/documents/Verizon%20appellate%20amicus%20brief.pdf

###
Public Citizen is a nonprofit consumer advocacy organization based in
Washington, D.C. For more information, please visit www.citizen.org.



Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html




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