http://biz.yahoo.com/djus/021004/1859000755_1.html Dow Jones Business News Music Companies Try to Force Verizon to Identify Suspected File Swapper Friday October 4, 6:59 pm ET
WASHINGTON — Music companies tried to persuade a judge to let them obtain the names of people suspected of trading music files online without going to court first, a move that could dictate how copyright holders deal with Internet piracy in the future.
Verizon Communications Inc. , the nation’s largest local-phone company which also provides Internet access, is resisting the music industry’s subpoena, saying it could turn Internet-service providers into a turnstile for piracy suits and put innocent customers at risk.
U.S. District Judge John D. Bates, who heard the case, lamented ambiguities in the Digital Millennium Copyright Act, which was enacted to uphold copyright laws on the Internet while shielding technology companies from direct liability.
Congress “could have made this statute clearer,” he said. “This statute is not organized as being consistent with the argument for either side.”
Judge Bates added he would try to rule quickly, but lawyers for both sides had no guess of when a decision might arrive.
The subpoena hearing, which is normally a tame affair, was contentious because the music industry sees it as a test case. If it succeeds, it plans to send reams of cease-and-desist letters to scare file-swappers into taking their collections offline.
Until now, copyright holders have relied on requests sent to ISPs — nearly all of which forbid sharing copyrighted material without permission — to take action on their own against suspected pirates. But that can take a lot of time, and makes copyright holders reliant on ISPs to enforce the law. ISPs don’t always respond as well or as quickly as music and movie publishers would prefer, and they think individual letters from the maker itself might work better.
Verizon said that since the hundreds of songs up for trade by the anonymous Verizon customer at the center of the case sit in the person’s computer rather than Verizon’s network, it isn’t required to automatically give up the subscriber’s name.
“Verizon was a passive conduit at most,” said Eric Holder, a former Justice Department prosecutor who represented Verizon. He added the music industry’s strategy could create a contentious relationship between Verizon and its customers and put the company in the position of handing over names to the music companies without a judicial determination of piracy.
“We also don’t want to be the policeman in this process,” said Mr. Holder.
Lawyers for the recording industry rejected Verizon’s arguments that it had little obligation in the process. Industry lawyer Donald Verrilli said no type of ISP is exempt from having to identify a potential music pirate, no matter where the songs sit.
He also dismissed Verizon’s position that Verizon’s customers have a right to privacy. “You don’t have a first amendment right to steal copyright works,” said Mr. Verrilli.
Judge Bates disagreed with Mr. Verrilli’s assumption that the works were stolen. “Here, there’s only an allegation of infringement,” he said.
The judge gave few hints as to how he might rule, asking many detailed questions of both sides. He called some Verizon positions vague, but showed little patience with other arguments advanced by the music industry and movie studios, which also argued on behalf of music publishers.
Through applications such as Kazaa, Morpheus and Gnutella, a person can find virtually any song or movie — sometimes even before it is released in stores — and download it for free. On a typical afternoon, about three million people were connected on the Kazaa network and sharing more than 500 million files.