In July, the RIAA invoked the Digital Millennium Copyright Act (DMCA) to force Verizon to turn over the identity of a Kazaa subscriber. Verizon opposed the request, telling a federal district court in Washington that the DMCA's turbocharged subpoena process does not cover people who are participating in a peer-to-peer network like Kazaa. At issue in the RIAA's request is an obscure part of the DMCA that permits a copyright owner to send a subpoena ordering a service provider to turn over information about a subscriber. It is not necessary to file a lawsuit to take advantage of the DMCA's expedited subpoena process. Verizon and ISPs agree that the RIAA has the right to unmask a true copyright infringer. "A copyright holder can certainly, as Verizon suggested that the RIAA do in this case, file a 'John Doe' lawsuit and seek the identity of the customer through ordinary discovery methods," the amicus brief says. Until now, the entertainment industry has relied on civil lawsuits aimed at corporations, not individuals, to limit widespread copyright infringement on peer-to-peer networks. Now, however, the RIAA is revising its strategy and appears ready to sue individuals swapping songs over the Internet. The RIAA said its lawyers were reviewing the amicus brief and could not immediately comment. In a statement, RIAA President Cary Sherman had accused Verizon of playing "a legal shell game" to save itself money. "The only thing Verizon is protecting is Verizon's own business interests," Sherman said. "They are trying to avoid the cost of identifying infringers as provided for in the DMCA by imposing unrealistic and burdensome obligations on copyright owners instead." RIAA said in a reply brief filed last week that Verizon had in the past turned over information about its DSL subscribers who were engaged in piracy -- but had abruptly changed its mind. "Verizon's newly minted legal position is baseless," the RIAA said. Two other amicus briefs
Also last week, the MPAA weighed in with its own amicus brief on behalf of the RIAA. It predicts a dire scenario will come to pass unless a federal judge, who has not ruled on the matter yet, allows the RIAA to use the DMCA subpoenas. "Like the sound recordings implicated by the RIAA's subpoena, the motion pictures produced and distributed by MPAA members are persistently subject to theft by Internet pirates. No tools are more critical in combating this digital piracy than the protections Congress enacted in the Digital Millennium Copyright Act," the MPAA said. Megan Gray, an attorney who wrote an amicus brief in this case on behalf of civil liberties group, on Tuesday said: "The RIAA and other copyright holders are seeking to install a surveillance regime in which every ISP is acting as the bloodhound of a copyright holder. That, I am pleased to see, is being resisted by the ISPs and the civil liberties community." The groups, including the Electronic Frontier Foundation, Consumer Alert, the Electronic Privacy Information Center, and National Consumers League, argued the RIAA is relying on a portion of the DMCA that violates Americans' right to be anonymous online. "Purported copyright owners should not have the right to violate protected, anonymous speech with what amounts to a single snap of the fingers," the brief said.
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