WASHINGTON – The music industry goes to court Friday to try to force an Internet service provider to identify a subscriber accused of illegally trading copyrighted songs, setting up a legal showdown that could indelibly alter the free-swapping culture that has been a signature of the Web's early years.
If successful, the suit against Verizon would pave the way for ailing record companies to send out reams of cease-and-desist letters to alleged music pirates, scaring them into submission rather than going through the long process of suing each one in court.
Verizon general counsel Sarah Deutsch said a record industry victory would harm the privacy rights of Verizon subscribers and force Internet providers to give up the names of its customers without judicial review.
"There are plenty of companies that have business problems that would like to write a letter-writing campaign to hundreds of thousands of people," Deutsch said. "We'll be a turnstile."
The case, which will be decided in U.S. District Court here, is the music industry's latest attempt to clamp down on illegal file sharing. Through programs like Kazaa, Morpheus and Gnutella, a person can find virtually any song or movie -- sometimes even before it's released in stores -- and download it for free. On a typical afternoon, about 3 million people were connected on the Kazaa network and sharing over 500 million files.
Verizon has already agreed to hand over the subscriber's name if the music industry trade group, the Recording Industry Association of America, files a separate "John Doe" suit against the subscriber. The RIAA refused. Top RIAA lawyer Cary Sherman said anti-piracy laws don't require a separate suit, which would require more time and expense.
"One of the things we're discovering is that people are not aware that they are engaging in conduct that is clearly illegal," Sherman said. "If you got a letter from RIAA saying we know that you're doing this, I'd say there's a pretty good chance that you would stop."
At issue is the Digital Millennium Copyright Act, passed in 1998 to protect copyright holders from piracy. It was created out of a compromise among Internet providers, technology firms and content owners. Now both Verizon and RIAA are saying the other isn't living up to the deal.
Most file-traders keep their music and movies on their own computer, only using their Internet provider as a pipeline to trade, and Verizon says RIAA only has an automatic right to know the subscriber's name if the copyrighted music sits on a Verizon-owned computer.
The music companies disagree.
"It wasn't the compromise that we agreed to," Sherman said. "There's nothing in there that suggests that it only applies when they are carrying the material."
Some language in the DMCA refers to "Information Residing on Systems or Networks," rather than the alleged infringer's own computer, but the judge will have to decide if that phrase should apply to the entire request.
Some of the technology industry's fears are listed in a friend-of-the-court brief filed by an Internet provider trade group. They cite some overzealous automated programs that identify alleged pirates and shoot out an automatic letter to their Internet provider without checking the facts.
In one case, Warner Bros. demanded a particular subscriber be disconnected for illegally sharing the movie "Harry Potter and the Sorcerer's Stone." But the computer file identified by Warner Bros. in its letter indicated that it wasn't the "Harry Potter" movie but a child's written book report.
Another letter, to Internet provider UUNet, wanted a subscriber cut off because they were sharing songs by former Beatle George Harrison. But some files were not songs at all. One was an interview with Harrison, and another was a 1947 photograph of a "Mrs. Harrison."
"In all other cases where we use a subpoena process, it is subject to judicial supervision and control," Verizon's Deutsch said, adding that the DMCA does not provide for any penalty for misusing subpoenas.
The Verizon subscriber at the center of this process was sharing thousands of songs on the Kazaa network, including some by Beck, Billy Joel and Janet Jackson. According to the Internet address cited in court records, the person is located in the Pittsburgh area. But the person may be oblivious to the fact that he or she is in the center of a controversy between the giant companies.
"Our general policy is to inform a user when we receive a subpoena," Deutsch said. "Since in our view this isn't valid, we haven't gotten the consumer involved in the debate."