Monday, August 04, 2003


In a ZDNet article published this afternoon, Declan McCullagh explains why the "RIAA's scare tactics bound to backfire." McCullagh writes:

But the most daunting obstacle to the recording industry's dogged efforts to rid the Internet of music piracy is a lawsuit that Pacific Bell Internet Services (also known as SBC Communications) filed against the RIAA last week.

It is carefully crafted to portray the RIAA and its contractors who scour P2P networks for infringers as out-of-control juggernauts who care precious little about due process, the rules of the federal court system, Americans' privacy rights and the U.S. Constitution.

You know what? SBC stands a decent chance of winning. If that happens, the case would deal a sore setback to the RIAA and make the dread subpoena process that the Digital Millennium Copyright Act (DMCA) created far less menacing.

McCullagh goes on to point out that SBC is using the same arguments that Verizon had previously deployed with very little success - but - SBC is also using other arguments, including finacial ones. SBC argues that "it and other Internet service providers 'must be compensated for the substantial costs incurred in complying with these subpoenas' and cites rule 45 of the Federal Rules of Civil Procedure. It says the recipient of a subponea must be 'reasonably compensated' for the work required to prepare a response." McCullagh says this financial blow will hit the RIAA where it counts. It certainly seems as if this could be a great deterrent: the more subpoenas the RIAA issues, the greater the compensation it may be required to dole out to the ISPs affected by large numbers of subpoenas. It certainly sounds as if SBC is on firmer footing than Verizon, but will these legal arguments fly?

I'm also quite pleased to see privacy some up as an important issue in this article: bulk subpoenas that have more or less been issued directly by the RIAA instead of a judicial authority are indeed a threat to the privacy of ISP subscribers. Hundreds, even thousands, of users may have their information turned over to the RIAA, and that volume of requests should frighten ISPs at least a little bit. Individual customer privacy is important, of course, but when one is speaking of the privacy concerns of thousands of users . . . well, given the choice between continuing service with a company that did not respect and value my privacy or obtaining new service with a company that did, I'd choose the new comapny, even if the service was more pricey or not as good. Time spent developing customer loyalty, as well as money thrown at marketing, advertising, and branding, might end up being completely wasted.

McCullagh closes with the following:

Sure, it's temping to beat up on the recording industry, but keep in mind that they're not the ones who enacted the DMCA back in 1998. Congress did. Elected representatives chose the interests of well-connected copyright holders over individual rights to privacy. The Senate approved the DMCA unanimously in October 1998, and the U.S. House of Representatives followed suit by a similar margin a few days later.

If the major record labels win their legal skirmish with SBC, and the DMCA remains intact, the fight will return to Capitol Hill. Let's hope the outcome will be different this time.

Too true, unfortunately. Histories of copyright law show that this state of affairs is really the status quo: the RIAA may not have directly enacted the DMCA, and Disney may not have directly enacted the Sonny Bono Copyright Term Extention Act, but they might as well have. Copyright law has historically been negotiated by those in control of the most established media of the day. Newcomers, innovators, and the public have never been well-represented, either in the negotiation process or in the resulting laws.

- posted by laurie @ 8/04/2003 09:55:00 PM
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