Court considers whether to allow music industry subpoenas

WASHINGTON -- A federal appeals court panel offered few hints Tuesday whether it will permit the music industry to continue using special copyright subpoenas to track and sue computer users who download songs over the Internet.

The three-judge panel from the U.S. Court of Appeals for the District of Columbia tossed tough questions at all sides. Judges plainly wrestled with esoteric provisions of the disputed 1998 law that permits music companies and others to force Internet providers to turn over the names of suspected pirates.

The decision, expected later this fall, could have important consequences for the music industry's unprecedented campaign to discourage piracy through fears of expensive civil penalties or settlements.

The Recording Industry Association of America, the trade group for the largest labels, has issued at least 1,500 such subpoenas this summer. It has filed civil lawsuits against 261 people it accused of illegally distributing music online and promised thousands more lawsuits.

Verizon Communications Inc. is challenging the constitutionality of the subpoenas under the 1998 Digital Millennium Copyright Act. U.S. District Judge John D. Bates earlier had approved use of the subpoenas, forcing Verizon to turn over names and addresses for at least four Internet subscribers; since then Verizon has identified dozens of its other subscribers to music industry lawyers.

But if the appeals court was leaning in one direction by the end of Tuesday's hearing, it was indecipherable. One judge, John Roberts, alternately suggested that a "logical extension" of the 1998 law wouldn't permit such subpoenas in these music lawsuits; then he accused Verizon of profiting from the online piracy of its subscribers.

"You make a lot of money off piracy," Roberts told Verizon lawyer Andrew McBride. People who download large collections of music traditionally favor high-speed Internet connections like those offered by Verizon's Internet subsidiary.

"That is a canard," McBride shot back. He said Verizon makes money when computer users purchase songs from online services affiliated with Verizon.

Roberts, a new appointee of President Bush, also challenged RIAA lawyer Donald B. Verrilli Jr. about whether computer users downloading music were any different from people who maintain libraries in their homes.

Roberts questioned whether the fact that copyrighted files were publicly accessible on someone's computer necessarily means the Internet user is illegally distributing those files. File-sharing software typically stores downloaded music in a computer folder that is freely available for other Internet users to browse.

"Isn't is equivalent to my leaving the door to my library open?" Roberts asked. "Somebody could come in and copy my books but that doesn't mean I'm liable for copyright infringement."

The 1998 law, passed years before downloading music over peer-to-peer Internet services became popular, compels Internet providers to turn over the names of suspected pirates upon subpoena from any U.S. District Court clerk's office. A judge's signature is not required. Critics contend judges ought to be more directly involved.

The appeals court must decide whether Bates correctly ruled against Verizon earlier this year. The same appeals court previously declined to put Bates' decision on hold pending the appeal, forcing Verizon to hand over the names of its targeted subscribers.

"We look forward to the court of appeals' affirmation of those well reasoned decisions," said RIAA President Cary Sherman, whose handheld digital recorder was quietly confiscated by courthouse security before the hearing. Recording devices aren't permitted in federal courtrooms.

Verizon had argued unsuccessfully that Internet providers should only be compelled to respond to such subpoenas when pirated music is stored on computers that providers directly control, such as a Web site, rather than on a subscriber's personal computer.

Senior Judge Stephen F. Williams told Verrilli that permitting subpoenas in these cases "makes a lot of sense from a policy standpoint," but questioned whether they were permitted under some interpretations of the law.

In his ruling, Bates wrote that Verizon's interpretation "makes little sense from a policy standpoint," and warned that it "would create a huge loophole in Congress' effort to prevent copyright infringement on the Internet."

Sen. Sam Brownback, R-Kan., has introduced a bill to protect Internet providers from such subpoenas. His proposal would block subpoenas except in pending civil lawsuits or in cases where pirated data files were stored on easily accessible locations, such as Web sites.

Still, a courtroom challenge may be Verizon's best hope.

Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said last week that it was too early to consider changing the 1998 law. He asked lawyers on all sides and consumers to report to his office about their experiences with these subpoenas over the next six months.

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On the Net:

Contested ruling: http://www.dcd.uscourts.gov/Opinions/2003/Bates/02-ms-323.pdf

Recording Industry Association of America: http://www.riaa.com

Verizon: http://www.verizon.com