Previous Politech message: "Verizon tells RIAA to shove it: 'Should be denied!'" http://www.politechbot.com/p-03943.html News article on oral arguments today: http://news.com.com/2100-1023-960838.html Andrew Schwartzman, the panel's moderator and president of the Media Access Project (http://www.mediaaccess.org/about/people/index.html) closed Wednesday's event by saying: >Let me, briefly, give from the perspective of the user. As journalists, >the fair use rights are incredibly important to you as journalists, and >you have colleagues, like Declan McCullagh, who post a lot of content, >quote letters, quote articles, and speeches. In this kind of blunderbuss >approach, you could well have a site that had your own personal >journalism, or excerpts of your own stories, challenged by the copyright >owner, and you would have under the, even under the inadequate protection >of the Digital Millennium Copyright Act, an opportunity to go back and >say, no, don’t shut down my site, I’m a journalist exercising First >Amendment rights, and I’m excerpting something that’s of public interest, >because I’m writing about it from the standpoint of a journalist >exercising my First Amendment rights, I have a fair-use right to do this >quote. That’s the kind of thing that we’re talking about and the kind of >problem that happens with this blunderbuss approach. Now, having said all >that, there are moments when I’d like to see Declan’s site taken down, but >that’s another discussion. Other Questions? (Unfortunately I wasn't there to participate -- I'm in California this week.) -Declan --- Internet Community Supports Verizon’s User Privacy Defense October 2, 2002 Speaker Index Dave Baker, Earthlink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 9, 10 Drew Clark, National Journalist Tech Daily . . . . . . . . . . . . . . . . 8-9 Susan Decker, Bloomberg News . . . . . . . . . . . . . . . . . . . . . . . .10, 11 Megan Gray, Council of Record . . . . . . . . . . . . . . . . . . . . . . . . .3-5, 10 Jon Larimore, Zzapp! Internet . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Dave McClure, U. S. Internet Industry Association . . . . . . . . . . 6-7, 9-10, 11 Andrew Schwartzman, Moderator . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5, 8, 9, 10, 11 Gigi Sohn, Public Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . .7-8, 9 Internet Community Supports Verizon’s User Privacy Defense October 2, 2002 ANDREW SCHWARTZMAN: Good morning everybody. I’m Andy Schwartzman. I’m president of Media Access Project. I’m going to try to help moderate this event. But we have speakers who are very knowledgeable on the subject and I’ll leave it to them to discuss things in a lot of detail. The important thing that I would underscore in introducing these folks is that you get lots of definitions of what the Internet is. Some people, depending upon their interests and what they do, will say it’s a way of buying things. And some people say it’s a way of exchanging information. And some people say it’s a way of doing commerce. Some people say it’s a way of communicating. Some say it’s a way to engage in speech and chat. And, of course, we answer that it is all these things. An issue has arisen in which the Recording Industry Association of America is trying to subpoena the names of Verizon’s customers. Verizon understands that when you make a telephone call, you expect that you can communicate with the person on the other end of the conversation with firm knowledge that nobody from Verizon is sitting there listening to it or is getting ready to turn the names of all it’s customers to anybody who just walks up with a piece of paper. And they understand that this applies to the Internet in the same way and even more. And has steadfastly stood up to this highly inappropriate action. The people here today want to express their support for Verizon’s actions and do so reflecting the different perspectives of people who use the Internet in all its different ways and from all its different perspectives. I’m not going to read biographies and materials in the packet for you. But I’m just going to introduce the folks and then we’ll take questions. First up will be Dave Baker, from Earthlink. Then Megan Gray who is lead counsel and whose a newcomer to Washington but is bringing some very important experience from being on the front lines on the West Coast over the years as the Internet has evolved and developed. Jon Larimore from Zzapp! Internet, Dave McClure from the U. S. Internet Industry Association and Gigi Sohn my erstwhile colleague for many years at Media Access Project but who now runs Public Knowledge. And I can’t not note with some extraordinary pleasure what an amazing job she’s done in setting up an organization that is addressing a very important set of needs. Okay, Dave I’m going to turn it over to you and then speakers will come up without further interruption from me. DAVE BAKER: See, I thought I was last on the list this morning. Andy’s just keeping me on my toes. I’m Dave Baker. I’m vice president of Law and Public Policy at Earthlink, along with Verizon Online, AOL, E-Bay, SPC, Worldcom, UUNet. We are members of the U. S. Internet Service Providers Association and I want to speak to a couple of points that were in the amicus brief that the RIAA versus Verizon case. ISPs have a long history of; at least as long as the DMCA’s been around, we have a history of dealing cooperatively with copyright owners and protecting that copyright pursuant to section 512C of the DMCA. And that deals with notice and take down professions. The situation where we get a notice that a web site that an ISP hosts has allegedly… has material that allegedly infringes a copyright. And there is a history of cooperation there, where a copyright owner uses the provision of section 512C to request that that allegedly infringing and offending material be taken down. And ISPs cooperate with that. But we have a different situation here. Where the RIAA is seeking not just to disable a web site that an ISP hosts. But rather is trying to use the subpoena powers under 512H of the DMCA to get at the identity of individuals who are alleged to have file share using peer-to-peer technology. And this is not…peer-to-peer is not addressed in the DMCA. It is obviously an item of current pending legislation. And however one might feel about the Burman Bill, I think there is a recognition there that it seeks to address peer-to-peer which is not addressed in the DMCA. And what we and ISPs collectively are concerned with is a situation unlike a 512C notice and take down provision where specific web sites are identified, where specific information has been identified. Rather, situation Verizon where bots will just go out, scour the Internet, flood ISPs with hundreds if not thousands of requests not just to disable information the web site hosts but to reveal the identity of individuals who allegedly have this information not on the ISPs servers but on their own individual hard drives. And that is not something that we could comply with. And it is not something that is provided for in the DMCA. A couple of examples which the US ISPA sites in their brief. UUNet received from Copyright dot net sent UUNet over a request to turn over the identity of almost twenty-seven hundred individual subscribers and page after page of alleged infringements that all that start with a C colon slash which indicates that they are not on UUNet servers. Not on their web server but rather on individuals’ hard drives and this is not what the DMCA was set up to handle. UUNet says that in 2001, they got about twenty 512C notifications a month. And that number is now coming in at the rate of over five hundred a month. So we’ve seen a dramatic increase in these… in all sorts of notices coming from copyright owners. Another example is…was a request to…for the identity of alleged infringement involving George Harrison songs. There was…not only were there notices to files that actually contained George Harrison music but a file for an interview with George Harrison and then an archain reference to a portrait of Mr. Harrison Williams 1943.JPG. In other words, something that had nothing to do with George Harrison or his music. But, rather, just a bot went out there, scoured, found the word Harrison and that got thrown into the subpoena. And similarly, Harry Potter…requests for information regarding Harry Potter and allegedly looking for video downloads in order to find the identity of users who were peer-to-peer file sharing video clips or video downloads of Harry Potter. There’s a file that shows up there that was “Harry Potter Book Report dot RTF.” It was a one K size file. It was a child’s book report on Harry Potter. Again, you know, an example that just goes to show that these are not as the RIAA contends specific targeted requests for information but rather just a shot gun approach to try to get ISPs to divulge the identity of individuals who, again, are not putting material on websites or on websites that ISPs host but rather may be peer-to-peer file sharing and the only connection to the ISP is that that information may have transitted the ISPs network. Now, again, we have been very clear from the start, we agree with the rights of the copyright and other intellectual property right owners to protect their intellectual property. But, section 512 of the DMC does not address peer-to-peer file sharing. More specifically, the subpoena powers in section 512H specifically refer back to section 512C which again has to do with the notice and take down provisions. Pardon all the “legal-ese” but these are important… you know, this is the subject of the hearing on this case. It’s going to be, when, on Thursday...Friday, thank you. And the RIAA is trying to take the DMCA, stretch it to encompass something that it does not address. And it is trying to hold ISPS…impress ISPs into service to turn over information that is not properly done under the DMCA. So sorry to bore you with the “legal-ese” there. I’ll turn it over to the other speakers and I think you’ll have questions at the end. Thank you. ANDREW SCHWARTZMAN: I read off the wrong speaker’s list order so apologies to you Dave. Let me try this again. We are going to go back to the original order. And it is going to be Megan, then Dave McClure, then Jon, then Gigi, and Dave’s already done his. And, I didn’t say this, and it went fine judging by knowing whose here and the various beeps and stuff that has been going on through the room. This is a reasonably tech savvy group here. If the acronyms get out of site and somebody doesn’t know what an RTF file is or thinks it matters, wave or otherwise demonstrate and we’ll elaborate. We’re not going to explain what the Digital Millennium Copyright Act is unless you guys really need to know. Okay, Megan. MEGAN GRAY: All right, I wrote the brief on behalf of the Civil Liberties Groups and I am just going to walk through some of those arguments. This has been an interesting case for me personally. When I was in California, I defended probably the most John Doe lawsuits of anybody in the country. And I also have been doing a lot of copyright litigation and enforcement throughout my career. So this has been a nice juncture for me to sit here and be able to analyze what the various rights are. And file a Friend of the Court brief, an amicus curiae brief with the court explaining those components that often the parties don’t have an opportunity to raise themselves because of court imposed page limits. This is a very important case. It is a test case. I don’t think this is anything even RIAA disputes. RIAA is trying to focus the court’s attention and presumably your attention as well on the fact that it is going after identity information for a single person. But that’s really beside the fact because what this case is going to decide is going to have implications for millions of current P2P users. And that number is just growing and extrapolating everyday. Even more, we are going to see new advances in the internet and new software developments that we can’t even predict. And it is those developments that most likely the ISP is going to act as a mere conduit. Just like it does with P2P programs. So this really is going to have huge repercussions now and in ways that we can’t even predict. What the RIAA is seeking is really unprecedented. They want completely unsupervised investigatory power that will jeopardize the rights of internet users. Period. It…that really is the crux of this case. And by unsupervised, I’ll go into a little more detail about that in a minute, but it is entirely unsupervised. It is granting any and every copyright holder the right to send a piece of paper to an ISP demanding identity information of an internet user. And all that piece of paper has to say is that I am a copyright owner and I think somebody has wronged me. Everybody in this room is a copyright holder. Everybody in this country is a copyright holder. So that’s giving anybody that may have a “beef” the right to go and unmask a critic, a target of their affection whether wanted or otherwise. Unmask a whistle blower. It really could expand to any number of uses. Yet the copyright industry is claiming that this basic connection, that the ISP provides, gives them the right to go to that ISP and get the information under the DMCA. The DMCA, as is mentioned earlier, was really not, was not negotiated or enacted into law at any time when P2P was in existence. P2P had not even begun yet. People had not…could not predict that. And yet what we are seeing is the RIAA trying to expand to that. The interesting aspect of this is as well is that the copyright enforcement programs use bots. They use them extensively. Too many people are on the internet. Too many are using P2P. They can’t individualize it so they devise the software programs to go out and troll the internet. And collect electronically every mention of Harrison or every mention of Beetles. And then a low level person at that company, not even a lawyer, reviews the bot-generated search results and sends out this little notice that says, “ I am a copyright owner and I would like…I think someone has done me wrong. See attachment.” And then attached any number of pages listing supposedly infringing files. That no one has actually looked at. Nobody has analyzed these for fair use. Nobody has analyzed these to see if it is in fact even a basic copyright infringement. There’s been no analysis about whether there is jurisdiction over this individual or if they have any other defense to a copyright infringement claim. Let me get into a little bit about why this is such a problem. I think our gut reaction to it is that it is a problem. Because we don’t like somebody to have that unilateral power to disclose identity. But it is a problem legally as well because in this country we have a constitutional right to anonymous speech. That is a right that the Supreme Court has recognized several times. Even, most recently, this past term in the Watch Tower Case. This right to anonymous speech obviously is rooted in free speech as well as privacy concerns. So you can break it down either way, but they really combine here in the right to anonymous speech. The Supreme Court has noted that anonymous speech is an enduring heritage. The American people, from the American Revolution, the anonymous pamphleteer was a heroic force during that time. Anonymous speech fosters robust debate. It also fosters self-discovery. People can go on line and participate anonymously in forms that they wouldn’t participate in if they had to identify themselves first. That can be by downloading text files dealing with sexual disease, sexual exploration. It can be material that is unpopular with the powers that be. It can be something that would be personally embarrassing, information on alcoholism. It can be downloading music that perhaps your parents wouldn’t approve of. And as long as that is not a copyright infringement, you have the right to participate in that anonymously. This anonymity right is not absolute and nobody claims that it is. Nobody wants it to be. It’s just that the right to anonymous speech cannot be violated on a whim. It cannot be violated unilaterally. There is no right…because there is no right to anonymously violate the law. And because we are not advocating that internet anonymity act as a shield against liability. The cases that have developed in this field say just that. You do not have the right to participate anonymously online but…mere allegations are not sufficient to toss aside that anonymity right. In defamation cases, in trade secret cases, in trademark infringement cases, in security violations cases, the courts have confronted this dilemma of internet anonymity and somebody else’s allegations of illegal conduct. And tests have been put into place to make sure that these two concerns are balanced. The court reviews the evidence, decides if it has merit, allows the anonymous person the opportunity to present competing evidence, and then makes a decision. That’s the hallmark of American jurisprudence. You have a neutral arbiter that weighs competing concerns, that has been how it has always been before the internet. And that’s how it should be now, with the internet. What the RIAA wants to do however is put the cart before the horse and say, “If we…if we say that there is copyright infringement that should be the end of the matter. We shouldn’t have to have a judge review this. We don’t need a neutral arbiter to evaluate our claims. You can trust us.” And I’m not trying to say that the RIAA is every time lying, or presenting a frivolous claim of copyright infringement. But accidents happen. Mistakes happen. And, more importantly, this court decision is not going to apply, at least persuasively, to all the other copyright holders in the United States, including the Church of Scientology, your neighbor next door, and myself. And you can’t trust everybody that’s why we have a government of laws here. And it’s why we need to have a judge review these types of requests for identity disclosure before they are made. The DMCA, according to the RIAA, gives them broad, unchecked, quasi-judicial authority to any private entity that has a copyright. RIAA wants to use a judicial tool, a subpoena, without judicial oversight. Completely divorced from any judicial oversight. Not only divorced, but in an expedited proceeding so that everybody involved here must act very quickly. There’s no time to give the purported copyright infringer notice of the subpoena and an opportunity to object to it. It must happen instantaneously and that is not appropriate. With this tool, any copyright holder, any purported copyright holder can silence critics, retaliate against whistle-blowers, harass individuals that they consider their enemies, stop people from distributing politically damaging memos. When I first got this case, one of the first examples that occurred to me was Deep Throat. If you had a really important document that you wanted to get wide spread dissemination, you might use a P2P system. I think that if we had Watergate now, that might be a very useful tool. But it wouldn’t be a tool that could be used if any individual purporting to be a copyright holder could then send a letter…notice requiring the ISP to identify the individual. The basic point of our amicus brief is that mere allegations are insufficient to irreversibly extinguish a constitutional right. And that’s an aspect to the right to anonymous speech that’s important here. Once that right is violated, that’s the end of the story. There is no remedy that can be devised. The cat is out of the bag and it cannot be put back in. So we want a court to be sure that any of these claims of copyright infringement actually hold some water before an individual is identified. The RIAA needs to have checks and balances. This country is built on checks and balances. And that is all we are requesting here. It is not that the RIAA or any other purported copyright holder would be without a remedy. There really is very easy and it’s a…it’s a remedy…it’s a recourse that we’ve always had in this country. File a lawsuit. It costs very little to file a lawsuit. There is nobody standing at the courthouse steps demanding a huge amount of money to file a copyright infringement suit. It can be a single piece of paper that is simply filed with the court. You pay a minimum filing fee. In California, I think it was twenty dollars. And once it is in that court system, you have judicial oversight. And then, the RIAA or the copyright holder then goes into the court and says, “Your Honor, I need to…in order to prosecute this law suit, I need to identify the defendant. Is that okay with you?” And then the court reviews the merits and says “Okay. It looks to me like you have a (?) prima faca case of copyright infringement that outweighs this individual’s constitutional rights to anonymity.” And that is all that we are asking the RIAA to do. And this procedure, not only having been the traditional and constant way to deal with illegal activity in this country, also provides a lot protections. That is why we have a court system. An individual that is often targeted in a lawsuit has a potential malicious prosecution claim. The evidence that is gathered through an improper subpoena can be subject to evidentiary exclusions. The lawyers who are prosecuting that lawsuit are subject to ethics complaints before their state bar. There are specific Rule Eleven sanctions that the court can award. And in a copyright infringement case, our government and our courts have deemed the free expression and the free exchange of materials to be so important, that if a copyright infringement lawsuit is filed and the plaintiff is wrong and the defendant has the right to do what he is doing, he can recover his attorney’s fees in defending against that law suit. It is these protections that the RIAA would rather not be bothered with. I understand what they want and why they want it. I think anybody in their position is going to want to have free reign without any judicial oversight. To unmask their perceived foes, or to go after somebody that they think has violated their rights. But this country does not permit that sort of unhindered and unsupervised use of judicial tools. This is not a Big Brother state where the ISPs function as the agent of the copyright industry to identify anybody that supposedly has violated their rights. What we don’t want to have on the internet is this chilling effect. Where you can be identified at whim. And that is the crux of our amicus brief. Thanks. ANDREW SCHWARTZMAN: Jon. JON LARIMORE: I am Jon Larimore. Thank you for this opportunity to present our side of this issue. I am president of a very small, non-profit, community supported organization which provides communications resources in ways not offered by others. One of the ways we currently do that is by awarding one year internet access grants to selected qualifying individuals who suffer terminal or long term illnesses or extended periods of unemployment. People who could improve their lives through access to the internet. Some of these folks are living with HIV/Aids or terminal cancer or they’ve been unemployed for several years. The internet access we provide allows these grant recipients, some of whom are severely physically challenged, to get outside of themselves and interact with the world which would otherwise be totally unreachable. To chat with other folks dealing with similar issues, to obtain crucial health or employment information, but mostly just to try to live as normally as possible in whatever time they might have left. Our sole source of income is derived from offering low priced dial up internet access to the general public through our internet service called Zzapp! For every ten new subscribers who join us we make one free account grant available. We call this our One For Ten program. Obviously, we receive far more applications for free accounts then are ever available. So this process of awarding them is a compassionately selective procedure. The way we are able to make these compassionate selections is by asking our grant applicants to share their most private health and employment information with us, extremely personal information which public knowledge could prove devastating. They do that because we strongly assure them that short of us being presented with a subpoena in each specific case, we pledge to never divulge anything about them to anyone, ever. That is why our legal system requires and our organization is protected by the existing subpoena process. Bypassing it could not only prove disastrous for the individual involved. It could expose our organization and in fact any small ISP like us to litigation far beyond our ability to handle. Like hundreds of other ISPs across the country, Zzapp! operates on a very small margin. In fact, in our case, at the end of the year, no profit at all. Zzapp! Internet Services is literally a one-man band. While our Board of Directors provides very necessary guidance, day-to-day operations are entirely run by one unpaid volunteer, me. I’m assisted by a roomful of automated computers. One of which is, literally, designed to supervise all the others. The [inaudible] reason we can do that, and the reason I can be here with you right now, is that we’ve been able to design our system in such a way as to require an absolute minimum of human intervention. This then leads us to the second major issue this RIAA suit presents: the likely possibility that, were this sort of thing to become legally permissible, ISPs everywhere could be inundated with such requests. Where I, as the one man who runs our entire operation, were to receive one such order, the research and log analysis necessary to comply would literally shut us down. We have nobody available to fulfill any volume of such requests and no money to pay anyone else to do it. It would be easy to view this as a battle between goliaths, but in this particular case, little David most definitely weighs in. If you’re an internet user, this issue has the potential to positively or negatively affect your personal privacy and either help or hinder the efforts of several thousand small ISPs, who try to protect your privacy every day. Thank you. DAVE MCCLURE: Well, good morning. I’m Dave McClure and I’m President of the U.S. Internet Industry Association. The USIIA is the oldest and largest trade association for companies engaged in Internet commerce, content, and connectivity. We were founded in 1994 to advocate for effective public policy for the Internet and we have members virtually every size and every facet of the Internet working to craft a business environment in which Internet companies can thrive. We are here today to voice our opposition to the lawsuit filed by RIAA. We filed an amicus brief also in this matter, which I believe is in your packet, and I’d ask you to take a look at it very carefully. But I wanted to make just a couple of brief comments about our opposition and also about the amicus brief. This case is not about right or wrong. It’s not about whether peer-to-peer file sharing, which incidentally has a number of applications from the SETI Search for Extraterrestrial Intelligence to a massive effort in the battle against cancer. This is not about whether that technology should be allowed to exist or not. Rather, it’s whether or not the RIAA should be allowed to expand its powers beyond the scope of anything ever intended by the Congress, and gain power so broad and so chilling that they threaten the integrity of Internet and Internet Service Providers. We examine, specifically, three points that we oppose. First, the subpoena served by the RIAA against Verizon, originally, is an invalid subpoena. The long-standing traditions of American justice, reaching all the way back to the U.S. Constitution, hold that such a subpoena may only be served if there is pending or imminently pending litigation. In this case, there is no evidence of such litigation and, therefore, it fails to meet even this most basic test. Second, the subpoena represents a violation of due process. The RIAA is looking to gain the right to pry into the private information of Internet subscribers and even demand the termination of that subscribers account with no opportunity for recourse. There’s not even someone you can call. In fact, you may not even be able to determine easily from the ISP why your account was terminated. It would be done automatically, blindly, with no knowledge; no chance to respond. This is a gross violation of due process, but it’s also a violation of the contractual relationship that exists between ISPs and their subscribers, and it places the ISPs potentially in the position of having to violate privacy laws, including those enacted this year by the state of Minnesota. Finally, it places a substantial and unfair burden on ISPs. You’ve heard John Larimore describe, just a moment ago, that even one such subpoena served on his service, a very valuable community service, would literally shut them down from the manpower requirements. The Digital Millennium Copyright Act balanced the need of copyright holders against those of ISPs in insuring that ISPs who merely act as conduits are not tasked with the burden of investigation for potential acts of copyright infringement. This is very important because, while the Copyright Act did not specifically address a technology that had not, at that point, come into widespread use, it had, by the way, been invented. Peer-to-peer file sharing’s been around since the seventies. It’s just in a slightly different form now. But the point is that the Copyright Act did make provisions for such technologies and what it clearly states is that in those cases where the ISP merely acts as a conduit, certain procedures must be followed. They have not been followed in this case. The action by the RIAA is an effort to impose new and substantial burdens requiring that the ISP devote an almost unlimited amount of resources to comply with vague and invalid demands that meet any of the requirements of the Copyright Act. We believe that on the strength of these three points alone, this lawsuit needs to be opposed, and it need to be overcome. For all of the other issues at hand, and you’ll hear many from all of the other speakers here. The first and foremost issue in our minds is that this does not meet the test of law. Thank you. GIGI SOHN: These podiums are not made for people who are five feet tall. [laughter]. Well, good morning. My name is Gigi Sohn. I’m the President and Co-Founder of Public Knowledge, which I think most of you know who we are. We’re now just a little bit over a year old and we’re a public interest organization that seeks to represent citizens’ rights in the battles over copyright policy and technology policy. So, I’m very pleased to be here, and Public Knowledge is proud to be a signatory to the amicus curia brief that Megan has so wonderfully drafted and we are really proud to support Verizon in this case. This case clearly demonstrates that, in the content industries war on piracy, and I put that in quotes: “War on Piracy,” citizens’ right and expectations will be the first casualty. Since the early days of Ma Bell, citizens have freely given their personal info to telephone companies and their successors with the expectation that their right to privacy will be secure. But now comes the recording industry, which is seeking to force the telephone companies and their successors to break that sacred pact, based only on the mere allegation that the individuals, whose names they are requesting, are engaging in illegal conduct. So the first, but certainly not the last, casualty in the “War on Piracy” is the right to privacy. Now the recording industry could use their sophisticated robot technology to find massive illegal file traders, and it could file a John Doe lawsuit and get the names of those traders, if it satisfied a judge that its allegations had evidentiary support. I think you’ve heard that many times today. So why isn’t it doing so? Well, let me posit a guess. What if they sue one these massive illegal file traders under a John Doe lawsuit, and she is the daughter of a Senator, or a 12-year-old honor student, or one of its own recording artists, that would be really bad. But what if they could just get a whole lot of names and addresses and other information about a whole lot of people that they think are engaging in illegal conduct? That would be better, right? They could conduct investigations of potential defendants and engage in surveillance over a period of days, weeks, months, maybe even years, hoping to find the least attractive defendants; perhaps a former convict, a Hell’s Angels, and maybe an Enron executive. So, even if the recording industry loses this suit, again I think they will, to me, there’s no dispute that Verizon clearly has the winning case here, and I think it’s kind of curious that it’s so clear. So, I don’t think this suit was brought necessarily to win it. OK. I do believe they’ll win this suit. But even if the recording industry loses this suit, they can complain to Congress that they have no remedies, and they can seek even more remedies than they’re already seeking. And, I don’t know if you got my press release it’s in the back, I detail how this lawsuit is just one of a piece. You know, I feel like I have to have seventeen arms to try to combat all the initiatives that the content industry, and it’s not just the recording industry, it’s obviously their pals in the motion picture industry and in the publishing industries; all the initiatives in Congress, and the FCC, and in the courts, that they’re using really to try to maintain control over their intellectual property. So, just in closing, I just want to say that my organization actually supports enforcement of existing laws to curb illegal file trading on peer-to-peer networks. Again, the emphasis is on enforcing existing laws. The problem is, that’s not what the recording industry wants to do. What they want to do is shift the burden of enforcing those laws on to ISPs, like Verizon, at the cost of citizens’ rights to privacy and anonymity. Thank you. ANDREW SCHWARTZMAN: Hands are already up. Knowing you people, this is an amazing time for reporters to remain quiet, and I’m sure there will be questions. You can start. Please identify yourself and your publication, use the microphone, and, if you’ve got a specific person you’re addressing, please so state. DREW CLARK: Ok, Drew Clark, National Journalist Tech Daily. I guess I have a two-part question. You identified some of the reasons why they’d prefer this approach than the John Doe suits, and you kind of put it in the most cynical light, but couldn’t the argument just as equally be that there would be less a burden on individuals if the RIAA could simply send peer-to-peer users warning letters instead of suing them? They don’t necessarily want to sue them -- haul them into court. They just want to stop their problem of piracy, and, if they could find out who’s engaging in peer-to-peer file trading, they could let them know this is illegal and, basically, encourage them to stop. So, I guess, Gigi, if you could respond to that, and anyone else. The second part of the question is, you know, I mean, you’ve all presented the parade of horribles for this suit, but really, aren’t all of these same things applicable to the DMCA notice and take-down provisions as-is. I mean, isn’t that really what you’re objecting to? I mean what is all of the due process concerns that you have about this could just as easily apply to DMCA general notice and take-down provisions. GIGI SOHN: I’ll take this on. I’ll take the first part of that question. For some odd reason, everybody has sort of lost sight of what the content industries do in the real world, and I think this digital world is such a different thing, and it really isn’t. OK. So, just as the recording industry is not going to go to the guy in Metro Center who’s selling, you know, phony CDs and, you know, give them a cease and desist letter. They’re not going to go after, you know, every single person with six illegal, you know, files on their hard drive and give them a cease and desist letter. They know. They have a good sense. I mean, robot technologies are not perfect and Dave gave those examples, some of which were also mentioned in the peer-to-peer hearing that I testified in last week. They have a pretty good sense of who their massive file traders are, and Kerry Sherman told me that, basically, every single day they get a list of people. You know, who’s got two thousand, you know, copyrighted files. Who’s got one thousand? They know. OK. So, why, they don’t need to waste their time sending them cease and desist letters. These are the type of people who are akin to the folks on Taiwan who are pirating thousands of CDs. They know who the bad people are, they just have to go after them. It’s more cost effective for them to send cease and desist letters to thousands of people, some of whom may have, you know, a small number of files, illegal files, on their hard drives. ANDREW SCHWARTZMAN: There’s another part. Dave, you want to take the legal question? DAVE BAKER: Yeah. Let me sort of follow up on Gigi’s comments. You know, I mean, an example of RIAA going after the folks who are really causing the trouble, was when they went after, last month, went after listenforever.com. If you saw the site before it went down, I mean, this thing was slick. It was very professionally done. This was not some…this was not a couple of college students just sharing a few files here. But the point is, they went after the cause. They went after the real problem. And that site is now gone. That’s a more proper way to do it than to try to sort of impress ISPs into service, saying, “We don’t know who these folks are, but we want you to divulge all their identity.” Again, if it were a question of… I mean, we have to draw the line at the first instance, because we’ve already seen examples of where ISPs will be served with hundreds and thousands of these requests. And the difference, there’s a very real distinction here between the personal identity of peer-to-peer file sharers and the notice and take-down provisions under 512C. The whole point of notice and take-down is the copyright owner saying to the ISP, “Hey ISP, this is a website you host. Here is clearly identifiable information on that website that infringes our copyright.” Whether it’s a song, a movie, a book, whatever. And, there’s a provision there for notification, taking down the website, a counter-notification, all done in good-faith showings. Again, we’ve got we and Verizon, and all other ISPs cooperating, just about. ISPs cooperate with the copyright owners in, and other intellectual property owners, cooperate with the copyright owners in protecting them. So, there’s no dispute under the 512C provision. Here, you have a situation again where the RIAA taken the subpoena provisions under section H, which specifically refer to 512C. The subpoenas talk about a notice and takedown provision, and instead they’re trying to apply that in a situation where it does not apply. The DMCA is silent as to peer-to-peer file sharing. That’s something that may need to be addressed, but it cannot be done in this context. ANDREW SCHWARTZMAN: The other David has something to say. DAVE MCCLURE: Let me address, specifically, your question about notification and takedown. Emphatically, no! This is not the same as the procedures that were set forth. We probably have been engaged in notification and takedown procedures as long as anyone. We negotiated the first set of notification and takedown procedures with the Software Publishers Association back in the spring of ’97. And I can tell you that all of those procedures have been based on the intervention of some form of judicial review. In a previous life, I also worked tracking down software pirates online on behalf of copyright holders, so I’m very familiar with the fact we’ve always had to verify the contents of those files. We had to verify that a copyright violation had taken place. That’s the heart and sole of the notification and takedown procedures. If you circumvent all of those safeguards, then what you have is not the procedures set forth in the Copyright Act. What you have then is a wholesale effort to place at risk the entire population of the Internet. We’re talking about an estimated 40 million American subscriber accounts that can be summarily terminated with no recourse whatsoever. That’s not what the copyright law provides for. That’s not the notification and takedown procedure. This is a far different animal. By the way, we strongly support the notification and takedown procedures. MEGAN GRAY: I was, just a couple points on this claim from the copyright holders, like RIAA, that “oh, we just want to send a letter.” Well, if that’s all they want to do, they can still do that after filing the John Doe lawsuit. It is again, very easy to dismiss the lawsuit. It is a form that the lawyer signs. There’s no complicated procedure here. So, if that’s all they want to do, after they’ve learned the identity through the court supervised John Doe lawsuit, they can still do that. And then, as to your question about whether our opposition to RIAA’s move here is in fact opposition to the DMCA in its totality. We’re not raising that argument, that’s separate. Our problem, in this case, is that the copyright holders are trying to expand the DMCA. Whatever problems we may have with the DMCA, is separate and apart from this case. We just want t make sure that it’s not expanded impermissibly like RIAA is seeking here. ANDREW SCHWARTZMAN: I think that you’ve got to go. DAVE BAKER: Yeah, I’ve got to… ANDREW SCHWARTZMAN: Any last questions for Dave Baker? SUSAN DECKER: Susan Decker, Bloomberg News. Could either of the Dave’s kind of walk through the procedure for a takedown procedure compared to how it would work per user? DAVE BAKER: I don’t have the statute in front of me, so I’m going to be a bit vague. But, basically, what we do is, the ISP receives a notice and takedown procedure in the process, and the ISP receives a letter that, you know, says all the magic words. There are specific things we need to be laid out. Maybe I ought to let Dave handle it, but just very quick overview. Says. “ISP, you host a website that we claim had material that infringes our copyright,” and there is a provision whereby the ISP then has to disable that site for ten business days. At the same time, give a notification to their subscriber, the website owner. The website owner can, if they want, using the proper incantations, file a counter-notification, stating that no, it does not, and gets it back up. One element that comes into play is that in all of this, the ISP is, and this goes back Section 2, the ISP is not, and could not, be liable for the billions of bits of information that transit its network everyday. The only exception to that is if an ISP just sort of says, you know, shrugs it off, doesn’t do what their supposed to under it; doesn’t take down sites, then the ISP could be liable under the repeat infringer policy. So, it’s not a situation that ISPs, you know, don’t have a stake in this; don’t have to abide by it. We very much do, and we do. Again, at the risk of repeating myself, we’ve got a long history of cooperating with the copyright owners to protect copyrights, and that’s something that ISPs take seriously. But here we have a situation where the RIAA is just trying to stretch the DMCA to do something that it was not designed to do. SUSAN DECKER: Could you use that same procedure for the user? DAVE MCCLURE: Not really, and, thanks Dave, that was a very good explanation. The notification and takedown procedures were a tool designed for an environment in which you have a static place to go and download. Something akin to Napster, for example, or a website, for example, that features music. It was not intended to address what happens when users share networks with one another, with no intervention whatsoever by the ISP. No intervention, actually, with the companies that make peer-to-peer software. They have no control over what you do, or how you share information. They have no way to stop you. So’ it’s not really a…. The discussion of notification and takedown, I think, is probably inappropriate, but I’ll repeat again, that the Copyright Act did address this issue when it clearly stated that in those situations where the ISP acts as a conduit, then there is no responsibility to take these actions, except in the face of a legally obtained subpoena, John Doe subpoena, which is one of the avenues open to them. And I’ll go back again. What they’re asking for is not simply the right to say, “Gee, tell us who this person is, so we can send them a letter.” That’s not what this is about at all. This is about scooping up a million IP addresses, sending them to the ISPs that are associated with those IP addresses, and demanding that those users have their accounts permanently terminated. Now, I don’t know about your house, but my house, about eight people use my computer. That means, all eight people, seven of whom may be completely innocent, in fact, all eight of whom may be completely innocent. My kid sends a book report that has Harry Potter’s name in it and we permanently lose our Internet account. No recourse, no way to call them back. How does that happen? How does that happen under the law? We say, well, It doesn’t, it shouldn’t, not in this country. ANDREW SCHWARTZMAN: Let me, briefly, give from the perspective of the user. As journalists, the fair use rights are incredibly important to you as journalists, and you have colleagues, like Declan McCullagh, who post a lot of content, quote letters, quote articles, and speeches. In this kind of blunderbuss approach, you could well have a site that had your own personal journalism, or excerpts of your own stories, challenged by the copyright owner, and you would have under the, even under the inadequate protection of the Digital Millennium Copyright Act, an opportunity to go back and say, no, don’t shut down my site, I’m a journalist exercising First Amendment rights, and I’m excerpting something that’s of public interest, because I’m writing about it from the standpoint of a journalist exercising my First Amendment rights, I have a fair-use right to do this quote. That’s the kind of thing that we’re talking about and the kind of problem that happens with this blunderbuss approach. Now, having said all that, there are moments when I’d like to see Declan’s site taken down, but that’s another discussion. Other Questions? Seeing no other questions, I’ll count to three and consider this exercise terminated. One, two, three. Thank you very much. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?q\clan -------------------------------------------------------------------------
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