VERIZON GAINS UPPER HAND IN RIAA SUBPOENA RULING

Verizon won its battle against the music industry late last month when the U.S. Court of Appeals for the D.C. Circuit overturned a lower court's ruling, making ISPs impervious to the Recording Industry Association of America's subpoenas. But the battle over online piracy is far from over.

RIAA has vowed to continue to hunt down music pirates by other means, and legal experts believe the association's appeals court loss could provide it with the ammunition it needs to take its case before Congress.

On Dec. 19, the appeals court ruled that RIAA did not have the power under the Digital Millennium Copyright Act (DMCA) to subpoena Verizon's subscriber information directly from the carrier. But the court rendered its decision on statutory, rather than constitutional, grounds. Essentially, the court said the DMCA doesn't grant the RIAA the power to request suspected music pirate's identities at will. But the court did not say that the practice itself was unconstitutional, which is how some industry observers expected it to rule. RIAA may take the decision as a cue to approach Congress about writing subpoena powers explicitly into the DMCA, said Sean Sullivan, an intellectual property attorney for McDonnell Boehnen Hulbert & Berghoff.

“I don't want to say the court took the easy way out, because that's not the case, but the constitutional issues are by far the sticker issues in this case,” Sullivan said. “If RIAA had to lose, it wanted to lose like this. It keeps their hopes alive. If the appeals court had come out and said those subpoena powers were unconstitutional, RIAA would have had little recourse.”

The music industry, however, has yet to give any indication of its plans — although RIAA officials said the association is pursuing legislation as well as petitioning the case to the U.S. Supreme Court. Since the appeals court rendered its decision, RIAA also has temporarily halted filing lawsuits against alleged music pirates. But a spokesman for the association said RIAA would resume its legal attack on copyright infringement soon using John Doe lawsuits — aptly named, since they must be filed without knowing the identity of the defendant.

“It's important we continue to file these lawsuits as it is the only way we can send the message that copyright infringement won't go unpunished,” the RIAA spokesman said. “We plan to utilize the John Doe process as it available to us.”

For the six months RIAA was granted subpoena power by a district court's ruling last summer, the association filed more than 4000 subpoenas with ISPs across the country. Those subpoenas led to hundreds of lawsuits, many of which are still in courts and some of which have settled.

Verizon is celebrating its latest victory but still has one more bone to pick with RIAA. It wants the more than 400 subscriber identities it coughed up back.

“RIAA is now in possession of a bunch of proprietary information they are not legally bound to have,” said Sarah Deutsch, Verizon's chief legal counsel in the case. “While we will fully comply with any John Doe lawsuits they file, we believe they have to give all the information back they acquired by subpoena.”

Verizon hasn't heard back from RIAA on its demands that any information be returned and any database or documents be destroyed, Deutsch said. But if RIAA doesn't comply, the two might find themselves in court once again, she added.

Regardless of the outcome of the legal battle, it's obvious the publicity surrounding RIAA's efforts is having an impact on music downloading activity of all sorts. In a survey released last week by comScore, activity on KaZaa — one of the most popular peer-to-peer sites — dropped 15% from November 2002 to November 2003.