ISPs Are New Target of Digital Copyright Army

Hilary Rosen, the pugnacious chief executive of the Recording Industry Association of America (RIAA), is happy about a court case that strengthens the subpoena power of the music industry outlined under the Digital Millennium Copyright Act (DMCA).

In the case, RIAA v. Verizon Internet Services, the association sought to force the ISP to identify by name a subscriber who allegedly downloaded protected music files using peer-to-peer (P2P) software. The judge’s decision put ISPs on notice that they will have to do just that.

The RIAA—made up of heavy hitters Sony Music Entertainment, Bertelsmann AG, EMI, Universal and Warner—rely on Rosen to put energy into stopping unauthorized distribution of digital content around the world. She has written letters to colleges and universities threatening them with legal action for letting students share copyrighted material across peer-to-peer networks, and she filed multi million-dollar lawsuits against Napster and MP3.com.

‘Get Even More Aggressive’

It seems Rosen—who, despite being painted as a defiler of the free Internet, has been lauded as a free speech advocate for waging fights against banning music lyrics—wants ISPs to be held accountable for their subscribers who download free music. “We must get even more aggressive,” Rosen told an audience of recording industry executives in Cannes in January. “Of all the problems we face, turning around the current situation with P2P networks is the most important.” Audience members and the Internet industry don’t have to look far to see what Rosen means when she talks about the RIAA turning the screws.

ISPs have to be held responsible for their subscribers’ allegedly illegal activities, Rosen believes, and the U.S. District Court for the District of Columbia at least partially agrees. At issue in the Verizon case was a name—the name of a Verizon Internet subscriber who allegedly downloaded some 600 titles from a KaZaA Web site in a single day. Though the recording industry was able to determine the subscriber’s IP address (easy enough to do with simple software, once a subscriber downloads from a site), it was unable to determine the subscriber’s name. The RIAA gave Verizon the time and date of the downloads and a list of the downloaded files, mostly single songs by popular artists.

It needed Verizon to match the IP address to the customer to determine the account owner. (Even though the IP address cannot indicate who the actual offending user is, it can reveal the name of the subscriber.) The RIAA also wanted the court to consider whether Verizon could be ordered to disconnect the subscriber as a punishment for the unauthorized downloads.

What? Me Worry?

Verizon in effect told the RIAA, “Go away, sorry, we’re not going to disclose the customer’s name, much less disconnect a subscriber.” The company didn’t believe it was responsible for the actions of that subscriber, especially because the user hadn’t stored the songs on the Verizon system. Verizon argued that the song content had merely traveled along its network to the user’s PC, where the customer downloaded it.

The court agreed with the RIAA’s right to subpoena Verizon for the subscriber’s name. “The court concludes that the subpoena power … applies to all ISPs within the scope of the DMCA,” the ruling stated, “not just to those service providers storing information on a system or network at the direction of a user.”

The court didn’t agree that Verizon should have to disconnect subscribers who misbehave with copyrighted materials. Verizon is loath to disconnect its users because it would hurt the acquisition of new customers, who would be concerned about suddenly being kicked off the Internet. It would also ruin that veneer customers feel when surfing in the world of semi-anonymity. The court noted, however, that most ISP customer agreements warn that ISPs can disconnect subscribers for certain kinds of misbehavior.

Verizon, however, is not happy about the ruling whatsoever. It fears that ISPs will be required to monitor the customer log files to catch peer-to-peer sharing of unauthorized content, an expensive and technically Kong-like application.

“It also breaks the bond between us and the subscribers,” said a Verizon federal spokesman in Washington. “There was an instance where a content distributor saw that someone had downloaded a file named ‘Harry Potter.’ They asked for the subscriber’s name, but the file turned out to be a child’s one-page paper, not the movie.”

Verizon will appeal the court’s ruling. “It’s not over yet, that’s for sure,” he said.