Taking a Closer Look at the P2P Subpoenas

An anonymous reader writes "Cnet is reporting a federal appeals court on Tuesday scrutinized the details of a 1998 copyright law, wondering whether it permits the wide-scale unmasking of alleged peer-to-peer pirates by the music industry." The issue, of course, is the constitutionality of the DMCA subpoena process which is among the more evil components of the often-criticized law.

The problem with "John Doe" lawsuits...

[sixteenraisins]

...is that the RIAA can file thousands of them arbitrarily, then assign individuals to those lawsuits once they're properly identified. At this point, I wouldn't put this strategy past them.

William

New Bill In Congress

[slutdot]

I just read an article [arstechnica.com] about a bill introduced by Sen. Brownback which would "require owners of digital media to file a John Doe lawsuit to obtain the identifying information of an Internet user, rather than simply requesting a subpoena. Currently, the Digital Millennium Copyright Act permits copyright holders to subpoena an Internet service provider for the name and address of a person they believe is violating a copyright. The one-page subpoena request can be issued by a court clerk and doesn't require a judge's signature."

"'There are no checks, no balances, and the alleged pirate has no opportunity to defend themselves,' Brownback said when introducing the bill. 'My colleagues, this issue is about privacy, not piracy. 'This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.'"

Promising?

[__aagmrb7289]

There were a few promising, and some other, less promising, statements made in this article. So I'll summarize what I like/dislike:

1. Looks like there are some politicians listening to us, a little. And a republican! 'Course, the senator is looking to defend ISPs, but the byproduct is defending the users of that ISP from having their privacy violated for no reason.
2. Looks like there may actually be some traction happening on this issue - all prior "looks" by judges at this issue has been a quick dismissal of the concerns.

Don't Like:
1. The judges are not bothering to consider whether the DMCA is constitional, nor if the way it is being abused is constitional, but whether or not it was intended to be used the way it is - this is NOT a good sign. It isn't going to help on the larger issue, but maybe it'll clean up the smaller one.
2. Ginsberg doesn't seem to understand the difference in usability for the average user between an FTP site and a P2P file sharing network. Not that his comments are invalid, but certainly the scope is very different. How do we educate our judicial system?

Anyway, some thoughts... take them as you will (I'm sure there are things I missed here).

Main thing I think we need to remind our congressman about - the RIAA is NOT a law enforcement agency, and should be slapped the hell down if they think they can step into that role.

Threats from the record industry side

[slavitos]

Perhaps, on a relevant note, yesterday's article in the "Internationa Herald Tribune" (reprinted from NYT) mentioned several reasons why these subpoenas may be counter-productive. One of them was that they will encourage people to move to more secure and anonymous networks (either Freenet-type or so-called "darknets").. It was interesting to hear the response to this argument from the "other side":

"The thing about darknets is that the users show more culpability than people who simply use peer-to-peer," said Randy Saaf, chief executive of MediaDefender, a music technology company that does work for the record industry. "When people are found to be using them, they will face stiffer penalties".

Now, from where I stand, this sounds like a threat. Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?

Re:pre-internet days

[gatzke]

I have heard fair use for copying out of a book is around 10% of the content. Handing out a chapter might be ok, but handing out copies of the entire book would be a bit much.

Of course, you can get your indian friends (dots not feathers) to bring back LEGAL copies of $100 scientific texts that run for a couple of bucks in india. This is similar to DVD region encoding, but the cheap version is paperback on bad paper.

Re:poor guy

[ikkonoishi]

One theory [shu.ac.uk]

Re:The problem with "John Doe" lawsuits...

[turnstyle]

If they file "John Doe" they don't know who they're actually suing until they've already won (if they lose, end of story).

So, in that scenario, expect a higher percent of sympathetic defendents, rather than fewer...

Legal Perspective?

[-Grover]

All three members of the appeals court appeared to accept the RIAA's contention that peer-to-peer networks are rife with piracy. "This case is about a fellow who made available 600 copyrighted works," Roberts said. "Is there any legitimate purpose for making available for copying 600 copyrighted works?"

Maybe someone has answered this legitly elsewhere, but I would love it if there could be a little light placed on this question since IANAL.

If P2P networks such as KaZaA (et. al) share files in a directory that you have previously downloaded by default, can you truly be held liable for making them available without your knowledge?

Imagine this situation:

I find a friend to OCR scan a copy of a book (which I own legal copy of) to my word processor for "backup" so I can read it if the original is destroyed. Following that, someone comes over to my house, and finds the file which is aptly named and copies it to a disk, and is subsequently caught possessing his "illegal copy". Can I be held accountable for giving him access without my knowledge?

To me it seems these P2P networks automatically make these files available with little knowledge to Joe User trying to find someone who Ripped and Encoded the latest Jay-Z song for use on his new iPod, which he could possibly own, and have a right to possessing a backup.

I know that just because you don't understand a law doesn't mean you can't be held accountable for it. I know distributing files is illegal, but if I don't know they are being distributed via my PC because I'm not "technically adept" is that a crime?

RIAA has to connect ISPs to infringement...

[Not_Wiggins]

It seems that the crux of this issue comes down to who's really infringing on the copyright.

It boils down to how the RIAA is trying to obtain the names and if the ISPs are a participating member of the "theft."

They have the right under the law to get the names of the offenders before they bring suit.

This seems reasonable.

They've chosen to go after the ISPs because they'd have the easiest (if only) way of identifying which people are the "thieves."

HOWEVER, just because the RIAA has the right to go after the names doesn't automatically mean the ISPs have to give them up.

I think this will boil down to deciding who is culpable in the pirating of music. If the RIAA can prove in court that the ISPs are actively infringing on the copyrights, then they'll be open to be sued to get the names of their "accomplices" (ie, Joe Downloader).

However, if the RIAA can't connect the ISPs with the downloaders, then they might be SOL.

It is a similar question faced by gun manufacturers. People would like to see them be liable (responsible) when someone dies from a gunshot wound. I believe it has been held up in court that simply providing the means to commit the crime *isn't* a crime when that wasn't the intention. Put more plainly, if the gun makers intended people to use the guns in crime, then they would be liable. However, since they provide guns for other legal uses, the fact that they can be used for evil isn't a strong legal point.

To make the point more obvious, it would be like making car manufacturers liable when people use cars to run people over. Absurd, I think you'd agree.

I'm hoping the courts will make the similar connection and stop the RIAA subpoenas. To this point, just because the ISP provides the network connectivity that makes P2P pirating possible, it wasn't the original intention. Hence, they aren't delivering a service for the purpose of supporting illegal activity... they're not directly culpable... so they should be able to tell the RIAA, "find your names on your own."

Wireless networks

[Transfan76]

I've been curious how it's going to work with all these open wireless networks hanging around. if someone uses your wireless networks, unbeknown to you, and the RIAA comes after you for copyright infringement, can they hold you legally responsible? Since copyright infringment isn't a criminal offence, and from what I know, there is no law requiring me to secure my wireless network, how can I be held responsible for what some stranger did?

Comment removed

[account_deleted]

Comment removed based on user account deletion

Alleged

[Anonymous Coward]

Sure, alleged pirates.

These guys should be punished for violating the copyrights of the music industry.

Re:Political Appointees

[fermion]

Actually, the opposite is true. For the most part appointed judges, especially those appointed for life, tend to try very hard to interpret the law in a fair and consistent manner. Their political bent only influences the base assumptions and on which side they will err. The number of judges that will ignore the law and rule purely on their own prejudice are few and far between. Unfortunately we have a couple on the US Supreme Court, but we knew they would be when they were appointed.

This has caused problem for more than one president who had hoped to stack the court only to find that the appointed judge did in fact have ethics.

OTOH, the elected judges tend to be the ones that might rule more often on the basis of personal prejudices and personal gain. These judges, like all politicians, have war chests to fill.

Re:It-Doesn't-Matter-To-Them Dept.

[gothicpoet]

And you're surprised that someone from the Ashcroft in-Justice Department would think that increased powers for... well... anyone who claims to be "punishing evil-doers"... is a GOOD thing?

I mean, these are the guys who aren't happy with the over-reaching Patriot Act -- they want a second act that goes even further. And according to recent press they've begun giving the nudge to prosecutors to find ways to get non-terrorists nailed on terrorist charges to radically increase the penalties for other violations of the law.

But of course, all those of us who think that the government would ever transgress our liberties are just paranoid terrorist supporters...

Re:Poor babies..

[91degrees]

You'd rather shift the money making from CDs to concerts, turning music distribution into a loss leader?

What makes you think this is the only viable mechanism? There may well be a way to allow a certain amount of file sharing without completely destroying CD sales. Sure, a lot of people say they want copyright law abolished, but most people are reasonable, and will accept a compromise whereby they can get some free music.

File sharing will eventually be dealt with, one way or another, whether it is eliminated or legalised, I have no idea. We just have to wait for whoever has the solution.

Re:Poor babies..

[Rimbo]

You know, up until recently it was against the law to have anal sex of any kind in Texas. Does that mean that everyone who did that should have been punished for it?

More to the point, is file-sharing theft? Since the evidence shows a strong correlation between file-sharing and CD sales, I would suggest that file-sharing is marketing, not theft.

And I'm not the only musician who thinks that way... See story [ajc.com] from yesterday's Slashdot [slashdot.org].

Re:Promising?

[DickBreath]

So why exactly is letting my 1 friend borrow a taped TV show "personal use" and letting 1000 friends borrow it not personal use?

Where exactly is the line? 2 friends? 20 friends? 100 friends? The line needs to be clearly spelled out when we're talking about something being legal vs. illegal. Just imagine fuzzy speed limits. Or fuzzy amounts of weed that constitute "intent to distribute". This is the whole reason the judge doesn't accept arguments like "but I was only going 2 MPH through that stop sign, which was perfectly safe". And the next guy, "...but I was only going 3 MPH".

Exactly why do you seem to believe that loaning a taped TV show to a friend is legal? Is there some chapter and verse of US law which says so? (i.e. an exception to the general mechanisms of copyright law.)

So the original poster's question remains quite valid in my mind. Why is such a ridiculous thing illegal? Which reinforces my (many times repeated) statement that this whole nonsense about "Intellectual Property" is going to implode in upon itself.

Bigger picture

[lurker412]

Isn't it beside the point whether the RIAA has to file a John Doe suit first? They certainly have the legal resources to do so. And the intent: the current subpoenas will be followed by lawsuits, or so they claim. Seems to me their methodology of identifying infringers is plausible enough that most judges would grant the subpoena if asked. So what will be different? I am uncomfortable with giving the RIAA the power of subpoena without judicial review, but so far, they have done nothing other than do what they said they would. Regardless of the procedure, I think it is inevitable that file sharing will continue, probably on yet to be developed networks that offer true anonymity. Which will trump the RIAA regardless of the outcome of the current legal spat. The RIAA should stop pissing into the wind and figure out how to make money with new technology. In the meantime, technologists should stop pissing on the RIAA and get those new, anonymous networks up to speed.

Re:Poor babies..

[anubi]

I have posted this before.

Bad law fosters civil disobedience.

Ignoring this only leads to things like our famous Boston Tea Party. [knightstemplar.com]

Consider substituting "RIAA" for "East India Tea Company", "DMCA" for "Tea Act", and "music" for "tea", and things look awful similar to today's situation. Note how the people involved in the "overthrow" are referred to as "Patriots". You would infer from this the "Patriot Act" would mean something completely different from what it does, ya?

Re:Threats from the record industry side

[Swanktastic]

Also, I don't think there's any legal basis to threaten anyone with "stiffer penalties" simply for using a better technology to do the same thing.. What do you guys think?

I think the RIAA is signaling that in this sort of situation, they won't be willing to settle for the "small" amounts that they're currently settling for. I think under law they can claim damages far in excess of what their settlements have actually been. As some have pointed out, when you use a darknet and indicate you know what's going on is illegal. In this case, the RIAA may just say "we don't feel like leaving you with your house and car, we want everything." Since the courts aren't handing out the fines, there's no legal basis really for any of this. In a sense, this kind of posturing may backfire in that people may feel more comfortable going to the court system and rolling the dice instead of taking the more severe known outcome of a settlement.

Re:pre-internet days

[forevermore]

I'm pretty sure that there is a special clause in fair-use that allows a certain amount of copying for educational purposes. Another user mentioned 10%, which sounds about right. I also know that there is a 45-second rule for multimedia clips, though I doubt that any college students bothered to really check this for their presentations.

Re:Slashdot ...

[Roark Meets Dent]

Has anyone wondered why it is necessary for ISPs to keep such detailed records of everyone's connection activity in the first place? Hmmm? Think librarians shredding records to avoid Patriot Act --- apply to this situation.

Re: RIAA's problem with "John Doe" lawsuits...

[cryptoluddite]

The RIAA does not want to file actual lawsuits for lots of reasons. There's the higher initial cost, but the real problem for them is that they have to actually come up with evidence.

They want to be able to write you a letter, DirecTV-style, that says "we know you are a pirate, pay us $3500 or we'll send you to debter's prison" without having to come up with decent evidence (or any evidence at all). They want to send these letters to people who haven't even downloaded/shared music and extort money from them. Preparing an actual lawsuit will cost a lot, and if they screw up they'll get smacked by the counter-suit. Plus anybody can demand a jury trial since the potential damages are large enough. It'll be hard for the RIAA to get a jury without filesharers on it and the courts and congress will not take kindly to lots of jury trials for this kind of thing.

The next generation of P2P clients, which will provide forms of statistical anonymity, combined with DCMA exceptions, will make it extremely difficult to actually come up with evidence that anybody actually infringed on their copy right. The RIAA is just causing people to use stronger filesharing, which hurts our government's ability to find actual criminals. Not only does nobody benefit from their actions (not users, artists, or the government) but it's actually causing damange to everybody else.

Re:The problem with "John Doe" lawsuits...

[Damn_Canuck]

By filing a lawsuit as well, would they not have to pay an initial filing fee with an appropriate judge/jurisdiction? If so, this could end up being costly for the industry should they lose a majority of the cases. Then who knows what kind of monetary settlement they would want to demand from the sued individuals.

Re:Promising?

[Jenolen]

Well, on the Fox network's website, they have an FAQ which asks if copies of older programs are available for purchase. They respond, No... Try asking your friends if anyone has a copy they recorded. So as long as I only download material that was at one time played on the Fox tv network (shows, movies, music that was in the soundtrack...), and i call everyone on the kazaa network my "friend"... Then I shouldn't have a problem. Right?

Or is that left?

See for yourself. Fox's FAQ:
New Window/Tab [fox.com]
Current Window [fox.com]

Re:Promising?

[bluejeans]

TV and radio are truly strange delivery mediums for copyrighted work. If some salesperson walked up to your door, knocked, and then handed you a ten dollar bill without any sort of agreement, you'd own the bill. A salesperson might do that if they wanted to make sure you'd listen to their pitch, but you wouldn't have to listen. You could just close the door because no agreement was made.

Television and radio networks offer TV shows and music in the hope that people will then listen to a sales pitch. As a result, when they deliver a show or song to your house, you own that copy of the show or song. Because you own that copy, it is legal for you to make a backup of it, or format shift it, or time shift it, and hand that exact copy to a friend. All of that is legal because of the right of first sale. The fact that time shifting is legal has been affirmed in several court rulings.

Don't get me wrong though. You only own the exact copy that was broadcast. If you duplicate it, then hand an extra copy to a friend, you're illegally distributing a copyrighted work. Of course, that brings up the whole ludicrous nature of the beast beccause the network really gave you an undefined number of copies, since you could have any number of recording devices in the house. But, if you try real hard to ignore artificial nature of the boundaries, it all kind of makes sense.

Re:Legal Perspective?

[El]

And how is getting an electronic copy and promising "cross-my-heart!" that I'm going to delete it when I'm done with it really any different than borrowing a book from a library and promising I won't scan the whole thing in with my scanner into OCR software? Why do we take it as a given that just because digital information is easier to copy, it's subject to different rules? Art has always been subject to copying, and it always will be. For thousands of years, if your performed your song in front of another musician, or told your story in front of another storyteller, they could "steal" it and claim it as their own! Now we have a small group of people insisting the government protect their income streams by forcing other people not to sing their songs or tell their stories... doesn't this violate the equal protection clause of the constitution?

RIAA guilty of hacking?

[Avatar889]

I'm just curious how the RIAA knows exactly what files I supposedly have and are supposedly trading? Are they monitoring Internet traffic from selected IP ranges? Investigating all large transfers? Flat out looking into people's unsecured harddrives and searching for *.mp3? I want to know what legal right they have to do this search anyway? Do they have a warrent for anything of the sort?

Re:Not "much more complicated." More expensive.

[Sloppy]

The reason why I say forcing the RIAA to first file "John Doe" lawsuits may only be "initially" more expensive is that in many cases the RIAA would have to file a lawsuit anyway -- i.e., in every case where pre-lawsuit subpoena to idenfity the downloader did not lead to a pre-lawsuit settlement.

I think that's fine. I'm not really worried about the cases where someone was really infringing and RIAA has a reasonable chance of beating them in court or getting them to settle. What I'm concerned about are the cases where the RIAA would eventually lose, because the sharer wasn't really infringing anything (e.g. he had permission from the copyright holder, or was sharing edited samples as fair use, or was sharing GPLed Gentoo packages or something weird like that). If RIAA can bully somebody without actually having a credible case and without making a legal committment, then liberty is endangered for everyone.

If RIAA tries to intimidate me and it turns out they're wrong, then when I counter-attack for vengeance, I don't want to just be able to say "well, they sent me a threatening letter and it hurt my feelings and stressed me out," because that will result in a judgement of $0 in my favor. I want to be able to say, "They falsely filed suit against me, and that required me to take expensive actions to defend myself, and here are the damages that I want RIAA to pay me."

John Doe's ID should only be revealed if RIAA is pretty sure they have a strong case -- and is willing to bet on it! This will deter fishing and gratuitous bullying.

I don't think that approach should be a problem for them, either. I hear there's a lot of real infringement going on out there, so they won't have problems finding it. Just be careful where you aim that gun, RIAA, because if you point it at me, I'll point something back.

Re:Threats from the record industry side

[Lehk228]

IANAL: The other side of the coin is that often darknets have encryption and other access controlls which spying on would surely require hacking/cracking which is a criminal offence (and using a password disclosed by someone not authorized to give out passwords is also illegal) so as long as the people in charge are careful about who they give the passwords to the RIAA would be in a tough spot to sue anyone based on information that they would have had to commit federal crimes to obtain.

yeah but..

[phuckauthority]

I like what Moby said, there should be an online service, what with the continued expansion of Broadband, that will allow any low-paid user to listen to an arbitrary number of songs an unlimited number of times possibly for a certain amount of time. They can listen to it all they want, and even a handy desktop client can be given out, and they pay some. Most artists never get royalities anyways, due to some fraudulent RIAA-Companies' accounting policies, so that's why many artists don't give a shit, they know it doesn't effect them because they make more money from the shows and the sales of merchandise. Moby is right, they need to embrace technology or be damned!