P2P Technologies Strike Some Sour Notes

Frustrated by file sharers downloading music for free, the industry hits up ISPs for names. So far, the industry's winning, and ISPs are losing.

by Tony Kern [June 4, 2003]

As Deputy Managing Director of Deloitte & Touche's Technology, Media & Telecommunications Group, Tony Kern brings more than 26 years of experience to the organization. Mr. Kern is responsible for coordinating the technology, media and telecommunications activities for management solutions, financial advisory services, enterprise risk, human capital, corporate finance and tax services. He is directly responsible for overseeing the firm's Media and Entertainment client services. He is involved in many professional organizations, including the Federal Communications Bar Association, Cable Television Tax Professionals Institute, American Federation of Television & Radio Artists, the Maryland Historical Trust, and the National Trust for Historic Preservation. Mr. Kern holds a BA degree in Telecommunications from Michigan State University. He is based in McLean, Virginia.

Today, the "wanted" poster lists only an Internet protocol address. But somewhere out there is a person using that IP address who, for the alleged act of downloading more than 600 songs on Kazaa last summer, the Recording Industry of Association of America (RIAA) wants to contact—directly and immediately—and not to say, "thanks for your interest."

All we know at this moment is that the individual is a Verizon Online subscriber and has managed to ignite major courtroom fireworks over a section of the Digital Millennium Copyright Act of 1998 (DMCA), which codifies protections for online content. Neither party is in dispute that the peer-to-peer (P2P) file sharing constitutes copyright infringement; rather, the conflict is over whether or not the RIAA—or any other copyright owner—has the right to use this process to force Verizon Online and other ISPs to identify individuals believed to have violated copyright law by downloading copyrighted content, in this case music, via P2P music-swapping services like Kazaa and Morpheus. A section of the DMCA, 512h, enables copyright holders or those authorized to act on the owner's behalf, who believe that an infringement has taken place online, to obtain a subpoena from a U.S. District Court clerk.

But larger issues also loom. Are conduit-type companies like ISPs responsible for customer behavior? If, as the RIAA maintains, 2.6 billion files are illegally downloaded each month around the world, does that mean ISPs will get billions of subpoenas? Can 512h lead to abuses of privacy? Are there alternatives that can nip the copyright infringement but satisfy those millions of file swappers? Technology, once again, has moved ahead of society and some say new business models may have to be shaped that address this ever-evolving digital frontier.

Who's got the power?
The RIAA is adamant that section 512h indisputably gives its members the right to obtain the identity of an alleged abuser. Verizon is arguing just as heatedly that 512h was misinterpreted by U.S. District Judge John Bates, who in January 2003 ruled in favor of the recording industry. Verizon has filed an appeal. Other ISPs, including Earthlink, express concern about their subscribers' privacy and due process. They also worry that this approach could lead to a wholesale issuing of subpoenas since, unlike a John Doe lawsuit, no judge is required to look at the case and issue the subpoena if it is deemed appropriate.

"The decision by the Court in our view is unprecedented in that the Court ruled that anyone who can get access to your IP address, fill out a one-page form and give it to a clerk who can stamp it, can get access to your information," says Sarah Deutsch, Verizon's vice president and associate general counsel.

Deutsch argues that the better approach would be the John Doe lawsuit. Fred Von Lohmann, senior staff attorney for the Electronic Frontier Foundation (EFF) and counsel for Streamcast, which created the Morpheus software, agrees. "Before an ISP is forced to hand over information, the copyright holder has to at least be required to go to court to have a judge review the issue so innocent people are not swept up in dragnets. We're not trying to protect those violating copyright law. Our concern at the EFF is about innocent people who are going to get swept up in this."

Go to page 2: Striking a balance