Politech mailing list archives
FC: Responses to Public Citizen on RIAA v. Verizon case
From: Declan McCullagh <declan () well com>
Date: Mon, 19 May 2003 18:46:11 -0400
Previous Politech message: "Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU" http://www.politechbot.com/p-04753.html --- Date: Mon, 19 May 2003 12:37:39 -0700 To: declan () well com From: Cindy Cohn <cindy () eff org> Subject: RIAA v. Verizon Hi Declan,I read Paul Levy's note about Public Citizen's amicus brief in the RIAA v. Verizon with great interest. While I have the greatest respect for Paul and Public Citizen, we disagree about whether notice to the consumer alone is sufficient protection and 43 other groups plus Verizon agree with us. We agree with Paul about the tests to be applied once you get to court.
The list on our brief (EFF was part of a core group of drafters) is impressive, ranging from Consumers Union and the Consumer Federation of America to the Competitive Enterprise Institute and the Pacific Research Institute to the ACLU, to library, rural, children and domestic violence organizations. It also includes nearly every major ISP and ISP organization in the country, and a European one. Public Citizen is alone on its brief claiming that the lower court's decision need not be reversed.
By doing away with the basic rule that the right of other people to demand personal information about you should only exist within the confines of a lawsuit, DMCA 512(h) is a tremendous step backwards for privacy and anonymity. It improperly assumes that no one who claims copyright infringement will be malicious, negligent or lazy. We've already seen examples of all three under a sister provision of the DMCA. You will notice that we started our brief with the story you broke last week about RIAA's admitted errors in use of that sister provision. Inside the brief we list several others that we've collected at the Chillingeffects.org website. Here's the first paragraph of our brief:
"Last week, a university department of astronomy nearly had its servers disconnected - and its ability to speak on the Internet cut off - after it received a threatening letter from Appellee Recording Industry Association of America (RIAA) accusing it of copyright infringement. The trigger? The department's website listed a professor with the same last name ("Usher") as a pop artist, and it allowed the download of a whimsical amateur song about gamma rays (performed a capella by some astronomers) that was closer to celestial charts than to anything on Billboard's Top 20. Although the RIAA has apologized for its error, and several dozen more like it, if the lower court's decision is permitted to stand there is no telling how many future errors will result in clerkstamped
subpoenas forcing the improper disclosure of individual identities.At stake in this litigation is whether fundamental First Amendment anonymity and privacy rights can be trampled with an unreviewed subpoena that is issued based on hastily generated paperwork and rests merely on a "good faith" allegation of copyright infringement."
I don't really think the Verizon case is about copyright infringement in the end. It's about whether the basic rules online will preserve the privacy and anonymity we enjoy offline. The Verizon case is clearly a test case selected by the RIAA, but we shouldn't let the specific facts here blind us to the obvious problems with the statute.
Here's the full list of co-signers to our amicus brief: 1. ALLIANCE FOR PUBLIC TECHNOLOGY, 2. AMERICAN ASSOCIATION OF LAW LIBRARIES, 3. AMERICAN CIVIL LIBERTIES UNION, 4. AMERICAN CIVIL LIBERTIES UNION CAPITAL AREA, 5. AMERICAN LEGISLATIVE EXCHANGE COUNCIL, 6. AMERICAN LIBRARY ASSOCIATION, 7. ASSOCIATION OF RESEARCH LIBRARIES, 8. CAPRICA INTERNET SERVICES, 9. CITIZENS FOR A SOUND ECONOMY FOUNDATION, 10. COMPETITIVE ENTERPRISE INSTITUTE, 11. COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, 12. COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, 13. CONSUMER ACTION, 14. CONSUMER FEDERATION OF AMERICA, 15. CONSUMERS UNION, 16. DIGITALCONSUMER.ORG, 17. DIGITAL FUTURE COALITION, 18. ELECTRONIC FRONTIER FOUNDATION, 19. ELECTRONIC PRIVACY INFORMATION CENTER, 20. EUROPEAN INTERNET INDUSTRY ASSOCIATION, 21. FRONTIER & CITIZENS COMMUNICATIONS COMPANIES, 22. INKEEPER CO., 23. MEDIA ACCESS PROJECT, 24. MERCURY NETWORK CORP., 25. NATIONAL ASSOCIATION OF CONSUMER AGENCY ADMINISTRATORS, 26. NATIONAL COALITION AGAINST DOMESTIC VIOLENCE, 27. NATIONAL CONSUMERS LEAGUE, 28. NATIONAL GRANGE OF THE ORDER OF PATRONS OF HUSBANDRY, 29. NEW YORK STATE TELECOMMUNICATIONS ASSOCIATION, INC., 30. PACIFIC RESEARCH INSTITUTE, 31. PRIVACY RIGHTS CLEARINGHOUSE, 32. PRIVACYACTIVISM, 33. PROGRESSIVE INTERNET ACTION, 34. PUBLIC KNOWLEDGE, 35. SBC INTERNET SERVICES, 36. SOUTHERN STAR, STIC.NET, LP, 37. TEXAS INTERNET SERVICE PROVIDER ASSOCIATION, 38. UNITE STATES INTERNET INDUSTRY ASSOCIATION, 39. UNITED STATES INTERNET SERVICE PROVIDER ASSOCIATION, 40. UNITED STATES TELECOM ASSOCIATION, 41. UTILITY CONSUMERS ACTION NETWORK, 42. WASHINGTON ASSOCIATION OF INTERNET SERVICE PROVIDERS, 43. WIREDSAFETY.ORG, 44. ZZAPP! INTERNET SERVICES The full brief is available on the EFF website: http://www.eff.org/Cases/RIAA_v_Verizon/20030516-riaa-v-verizon-amicus.php As is our Press release: http://www.eff.org/Cases/RIAA_v_Verizon/20030516_pr.php The hearing is currently set for September 16, 2003 in DC. Cindy -- ********************************************* Cindy Cohn Cindy () eff org Legal Director www.eff.org Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 415-436-9333 x 108 (tel) 415-436-9993 (fax) --- From: "Dave McClure" <dmcclure () usiia org> To: <Declan () well com> Subject: Paul Levy's Take On RIAA v. Verizon Date: Mon, 19 May 2003 13:34:30 -0400 Organization: USIIA Message-ID: <005301c31e2c$eac74cb0$07d96444@usiia> MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="----=_NextPart_000_0054_01C31E0B.63B5ACB0" X-Priority: 3 (Normal) X-MSMail-Priority: Normal Declan: With all due respect to Paul Levy, Public Citizen is the only organization that subscribes to his interpretation of the RIAA v. Verizon case. Those who believe that simple notification will not cure the constitutional infirmaties with 512(h) of the DMCA include not only USIIA, which led the industry amicus effort in the case, but the following amici: ALLIANCE FOR PUBLIC TECHNOLOGY, AMERICAN ASSOCIATION OF LAW LIBRARIES, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION CAPITAL AREA, AMERICAN LEGISLATIVE EXCHANGE COUNCIL, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, CAPRICA INTERNET SERVICES, CITIZENS FOR A SOUND ECONOMY FOUNDATION, COMPETITIVE ENTERPRISE INSTITUTE, COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, CONSUMER ACTION, CONSUMER FEDERATION OF AMERICA, CONSUMERS UNION, DIGITALCONSUMER.ORG, DIGITAL FUTURE COALITION, ELECTRONIC FRONTIER FOUNDATION, ELECTRONIC PRIVACY INFORMATION CENTER, EUROPEAN INTERNET INDUSTRY ASSOCIATION, FRONTIER & CITIZENS COMMUNICATIONS COMPANIES, INKEEPER CO., MEDIA ACCESS PROJECT, MERCURY NETWORK CORP., NATIONAL ASSOCIATION OF CONSUMER AGENCY ADMINISTRATORS, NATIONAL COALITION AGAINST DOMESTIC VIOLENCE, NATIONAL CONSUMERS LEAGUE, NATIONAL GRANGE OF THE ORDER OF PATRONS OF HUSBANDRY, NEW YORK STATE TELECOMMUNICATIONS ASSOCIATION, INC., PACIFIC RESEARCH INSTITUTE, PRIVACY RIGHTS CLEARINGHOUSE, PRIVACYACTIVISM, PROGRESSIVE INTERNET ACTION, PUBLIC KNOWLEDGE, SBC INTERNET SERVICES, SOUTHERN STAR, STIC.NET, LP, TEXAS INTERNET SERVICE PROVIDERS ASSOCIATION, UNITED STATES INTERNET INDUSTRY ASSOCIATION, UNITED STATES INTERNET SERVICE PROVIDER ASSOCIATION, UNITED STATES TELECOM ASSOCIATION, UTILITY CONSUMERS ACTION NETWORK, WASHINGTON ASSOCIATION OF INTERNET SERVICE PROVIDERS, WIREDSAFETY.ORG, AND ZZAPP! INTERNET SERVICES. A copy of our brief is attached. [See Cindy's URL above. --Declan] BTW, note that if this ruling stands, and if California does indeed pass Its proposed law on consumer notification, ISPs can expect to spend much More of their time chasing copyright allegations than in running their Networks. This does not bode well for the industry. Regards, Dave --- Date: Sat, 17 May 2003 12:22:14 -0700 From: Brad Templeton <brad () templetons com> To: Declan McCullagh <declan () well com> Cc: plevy () citizen orgSubject: Re: FC: Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU
You're not so far from the EFF in this case then. We agree that proper John Doe defendant rules should be applied in these cases, as they have been for alleged defamation cases on online message boards and other locations. The court has so far interpreted the statute to hand over identity with a mere allegation. There has to be a standard of proof before the identity is handed over. --- Date: Sat, 17 May 2003 15:43:21 -0400 From: "Paul Levy" <PLEVY () citizen org> To: <brad () templetons com>, <declan () well com> Subject: Strategy and tactics the disagreement we have could be explained one of three ways. It could be that EFF does not believe that it is possible to construe the statute to require more than a mere allegation; it could be that EFF sees such a construction as possible but prefers to see the statute construed otherwise because it would rather have the statute declared unconstitutional and it thinks that outcome is a realistic possibility; or, it could be that EFF is not willing to be seen publicly as siding with the RIAA on any case of this sort. For my part, it seems to me that if we are arguing for a balancing test, we have to be willing to acknowledge the possibility that sometimes the person seeking the identity will prevail. Moreover, getting a statute passed by Congress declared unconstitutional in a facial attack is a daunting task in any circumstances; in a case with terrible facts such as the two in which Verizon has chosen to take its stand, and in a relatively "establishment conservative" court like the DC Circuit (and the panel in this case is, I should say, not one of the more individual freedom oriented groupings), just how likely is that? So, I think it is just asking for trouble to tell the Court that the only way to ensure that the "John Doe" standards are applied is to declare the statute unconstitutional on its face. 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 --- Date: Sat, 17 May 2003 11:48:04 -0700 (PDT) Reply-To: Karl Auerbach <karl () cavebear com> To: Declan McCullagh <declan () well com> Subject: Re: FC: Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU In-Reply-To: <5.2.1.1.0.20030517120326.03a2d570 () mail well com> On Sat, 17 May 2003, Declan McCullagh wrote: The following statement scares me: > Date: Fri, 16 May 2003 13:13:07 -0400 > From: "Paul Levy" <PLEVY () citizen org> ... > For Immediate Release: Contact: Paul Alan Levy (202) 588-1000 ... > 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. This suggests to me that under today's atmosphere of hyper protection of copyright that it might have been possible to block publication of the the Vietnam war Pentagon papers on grounds that they were copyrighted, that the copyright would supersede the NY Times first amendment right to publish them. I find it hard to believe the RIAA's assertion, that seems to be blandly accepted in the press release, that the existance of a copyright in material somehow extinguishes any first amendment rights in the copyright violator to utter or publish the copyrighted material. It seems to me that copyright remedies should go no further than monetary damages; that a person who wishes to utter or publish copyrighted material should be able to exercise first amendment rights to do so. However that exercise might give rise to monetary damages if the material is copyrighted and there is a measurable harm to the copyright owner. Remember, virtually any written document is today copyrighted even without a notice or positive act on the part of the author. If copyright can extinghish first amendment rights, then we have all necessary components to gag the press. --karl-- --- Date: Sat, 17 May 2003 13:04:44 -0700 From: Seth David Schoen <schoen () eff org> To: Declan McCullagh <declan () well com>Subject: Re: FC: Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU
Declan McCullagh writes: > 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. We have respectfully disagreed with Paul about some issues; here's our own press release and brief, released yesterday: [Update: 45 organizations signed the brief: 27 consumer and privacy groups and 18 ISPs and ISP associations.] Washington, D.C. - Today the Electronic Frontier Foundation (EFF) and 44 other organizations and Internet Service Providers (ISPs) are asking a federal court to protect the privacy of Internet speakers in a case pitting the Recording Industry Association of America (RIAA) against ISP Verizon. The RIAA has attempted to use a controversial subpoena provision introduced by the 1998 Digital Millennium Copyright Act (DMCA) to reveal the identity of a customer who allegedly shared music online using the KaZaa peer-to-peer service. The DMCA subpoena provision allows those who claim that an Internet speaker has used their copyrights without proper authority to obtain a subpoena demanding that an ISP turn over the identity of that Internet speaker. The subpoena issues automatically without filing a case, notice to the speaker, or judicial review. "Just this week the RIAA admitted that it issued over a dozen bad cease-and-desist letters, including one to Penn State claiming that a website with an astrophysicists' MP3 and a physics professor named Usher offered a copyrighted work by the rhythm and blues artist," noted EFF Staff Attorney Wendy Seltzer. "Applying the DMCA subpoena provision with similar errors would have violated the privacy of Internet speakers, inappropriately disclosing to the RIAA the identities of at least a dozen individuals who had done nothing wrong." EFF believes the DMCA subpoena provision endangers consumers' privacy and is inconsistent with the constitutional right to anonymous speech. The DMCA provision counters established case law that provides due process safeguards designed to protect the anonymity of speakers against false or negligent claims. EFF maintains that these same due process standards should apply to DMCA subpoenas. "EFF has handled many cases protecting the rights of anonymous speakers online against false charges and sham lawsuits," noted EFF Legal Director Cindy Cohn. "If the court upholds the DMCA subpoena provision, it will create a new, easy way to silence controversial speakers online." Joining EFF in filing a friend-of-the-court brief are 18 ISPs and ISP organizations and 27 consumer groups, including the ACLU, Competitive Enterprise Institute, Consumers Union, and the National Coalition Against Domestic Violence. http://www.eff.org/Cases/RIAA_v_Verizon/20030516_eff_amicus.pdf -- Seth Schoen Staff Technologist schoen () eff org Electronic Frontier Foundation http://www.eff.org/ 454 Shotwell Street, San Francisco, CA 94110 1 415 436 9333 x107 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. ------------------------------------------------------------------------- To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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