Score One for Personal Privacy

Last month, things got a lot more interesting with the Recording Industry Association of America’s (RIAA’s) attempts to curb illegal file sharing.

I’ve written about legal tactics the RIAA employed to force ISPs to violate the personal privacy of their subscribers. I objected to the RIAA’s interpretation of the Digital Millennium Copyright Act (DMCA), which the RIAA believes allows it to acquire the personally identifiable information of any ISP subscriber it suspects of sharing music files illegally.

Don’t get me wrong, I do believe sharing copyrighted music is breaking the law. However, I don’t think the RIAA has the right to demand an ISP turn over a customer’s personally identifiable information purely on a suspicion that person may be sharing copyrighted music.

The RIAA argued its methods to identify the offending file sharers were impeccable. Critics argued innocent citizens would be caught in the dragnet. A D.C. judge sided with the RIAA. Once it acquired the names and addresses of alleged offenders, the attack dogs started sending letters threatening lawsuits and fines in the hundreds of millions of dollars if the alleged offender didn’t agree to an out-of-court settlement, typically in the thousands of dollars.

Within weeks, the RIAA threatened a 12-year-old girl, an unknowing grandfather, and a retired schoolteacher. The retired schoolteacher received a letter accusing her of sharing over 2,000 copyrighted songs from the likes of Busta Rhymes and Trick Daddy. The RIAA threatened to sue her for $300 million if she didn’t settle. She hired a lawyer instead and was able to prove she wasn’t the miscreant the RIAA believed.

The RIAA rescinded the letter. The critics roared. Clearly, predictions innocent citizens would have their privacy trampled on by the RIAA had been correct. The unfortunates were forced to hire attorneys at their own expense to clear their good names. There was no opportunity to counter-sue for damages.

Late last month, the U.S. Court of Appeals for the District of Columbia Circuit overturned the original ruling, based on the location of the stored copyright music. According to the ruling, the DMCA allows copyright holders to subpoena an ISP when material that allegedly violates copyright reside on ISP-owned servers. It doesn’t address situations in which material that allegedly violates copyright resides on servers owned by ISP customers.

In other words, because the copyrighted music resided on the individuals’ computers, the ISPs can’t be subpoenaed for the personally identifiable information of those computers’ owners. Going further, the ruling chastised the RIAA for arguing ISPs are responsible for data transmitted over their networks, saying the argument “borders on the silly.”

Internet privacy advocates hailed the appellate court’s ruling. Electronic Frontier Foundation (EFF) staff attorney Wendy Seltzer said:

Internet users are the winners…. The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan.

The RIAA tried to spin the ruling as anti-consumer. Cary Sherman, president of the RIAA, said in a written statement, “It unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation.” Hilarious. The RIAA now claims its threatening-letter tactic prevented consumers from being forced to defend themselves in a court of law. Ludicrous. The RIAA’s threatening-letter campaign was intended to deprive citizens of protections provided by the courts.

The RIAA is now in a weaker position because must face those it accuses in court. The falsely accused have the right to counter-sue and will likely be awarded reparations for the injurious, unsubstantiated RIAA accusations. No, the RIAA won’t want to assume that risk.

Add to that the public humiliation the RIAA opens itself up to in the event its failsafe identification tactics fail… again. Imagine the red faces when Jane Doe ends up being a 66-year-old grandmother accused of sharing rap and hip-hop, though she doesn’t even own a computer? No, the RIAA can’t risk the embarrassment.

Then again, the recording industry is in steep decline. It’s managed to alienate most of its existing customer base, not to mention every music fan under the age of 24, with scare tactics. The RIAA really doesn’t have that much more to lose, does it?

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