FC: Paul Levy on RIAA v. Verizon -- a different take than EFF, ACLU

From: Declan McCullagh (declanat_private)
Date: Sat May 17 2003 - 09:13:22 PDT

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    Date: Fri, 16 May 2003 13:13:07 -0400
    From: "Paul Levy" <PLEVYat_private>
    To: <declanat_private>
    
    Public Citizen is filing a brief today in RIAA v. Verizon Internet
    Services.  We are not joining the EFF, ACLU and others in arguing that
    the order enforcing the subpoenas should be reversed.  There are two
    reasons for that.
    
    First of all, we think the chances of getting the DMCA declared
    unconstitutional are small, and the statute can be construed to require
    the application of the familar balancing test for which we have been
    successfully arguing in several cases around the country -- that is, you
    notify the anonymous speaker, require evidence of wrongdoing, and then
    give the anonymous speaker the chance to show she did nothing wrong.
    Second, on the facts of these cases, it's pretty clear that we have a
    flagrant copyright infringement - - each subscriber made hundreds of
    songs available for download, and it is pretty hard to construct a fair
    use dfense for that.  Notice was given (althoug it was given late in the
    case) but the anonymous users chose not to defend themselves.
    
    In fact, RIAA chose two test cases where the facts overwhelmingly favor
    enforcement of the subpoena, and although we can respect Verizon for
    standing up for its subscribers, it might well have chosen a better
    vehicle for its arguments by waiting until RIAA sent it questionable
    subpoenas.
    
    Our press release follows; the brief can be found on our web site.
    
    For Immediate Release:    Contact: Paul Alan Levy (202) 588-1000
    May 16, 2003       Shannon Little (202) 588-7742
    
    Subpoenaed Identities of Music Sharers Could
    Threaten Internet Speech Rights
    
    Court Should Follow Process to Weigh Rights of Recording Industry
    Against Rights to Online Anonymity, Public Citizen Says
    
      WASHINGTON, D.C. - The Recording Industry Association of America
    (RIAA) has not shown why a court should bypass legal processes that
    protect the right to speak anonymously on the Internet, or why the court
    should permit the association to learn the names of users who illegally
    downloaded copyrighted music files, Public Citizen said in a brief filed
    today with the U.S. Court of Appeals for the District of Columbia.
    
      In June 2002, the RIAA obtained two subpoenas compelling Verizon, an
    Internet service provider, to disclose the identities of two anonymous
    subscribers who had each been making hundreds of copyrighted recordings
    available through the peer-to-peer file-sharing system KaZaA to fellow
    KaZaA users. Verizon objected to the subpoenas, but a judge for the U.S.
    District Court for the District of Columbia ruled in January and again
    in April that Verizon must reveal the subscribers' identities. Verizon
    has appealed that ruling.
    
      RIAA obtained its subpoenas under the Digital Millennium Copyright Act
    (DMCA) of 1998, a law Congress passed to address rising concerns over
    the illegal downloading and sharing of copyrighted, online material.
    Verizon's appeal contends that the provision in the DMCA allowing
    subpoenas is unconstitutional.
    
    In its friend of the court brief, Public Citizen argued that although
    the activities of the two subscribers were apparently illegal and the
    court was entitled to order Verizon to disclose their identities, that
    was only because the court required notice to the subscribers who chose
    not to defend their anonymity. And, because the DMCA allows courts to
    require such notice, the law complies with constitutional due process.
    
      "Courts across the country have helped to establish 'John Doe'
    procedures, which help to ensure that identities are not given out
    indiscriminately. This court should hold both RIAA and Verizon to those
    procedures," said Paul Alan Levy, a Public Citizen attorney who wrote
    the brief. "Even if the people's identities are eventually disclosed, it
    would be a dangerous precedent to ignore the established processes."
    
      In its arguments, RIAA reasoned that the "John Doe" procedures were
    not needed because there is no First Amendment protection if a copyright
    infringement is involved. However, no court had determined that any
    copyright violations had occurred at the time the subpoena was issued. A
    multi-part test gives anonymous speakers the opportunity to contest
    allegations before their rights to anonymity are permanently breached.
    
      Courts apply a five-part test before compelling disclosure in many
    cases of anonymous online speech, requiring, among other things, that
    the speaker be given notice that his or her identity is being sought,
    that the statements supporting disclosure are quoted exactly, and that
    the right to identify the speaker outweighs the right to speak
    anonymously.  The same procedures apply under the DMCA, Public Citizen
    argued.
    
      One vital step in the procedure, which was met in this case, is that
    the anonymous user be notified that his or her identity is being sought.
    The court should instruct district courts to require such notice at the
    beginning of any similar case, thereby allowing speakers to obtain an
    attorney and prepare a defense.
    
      RIAA has indicated that it will seek many subpoenas similar to the
    ones at issue here, and in many cases, the copyright issues will not be
    as clear. For this reason, it is essential that the court ensure that
    the DMCA is not abused or applied in a way that is inconsistent with the
    law's original intent, Levy said.
    
      A copy of the brief is on the Web at
    http://www.citizen.org/documents/Verizon%20appellate%20amicus%20brief.pdf
    
    ###
    Public Citizen is a nonprofit consumer advocacy organization based in
    Washington, D.C. For more information, please visit www.citizen.org.
    
    
    
    Paul Alan Levy
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000
    http://www.citizen.org/litigation/litigation.html
    
    
    
    
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