Invading Your Privacy

The oft-vilified recording industry is at it again. In an attempt to battle music pirates, it wants to chip away at our privacy... and place the burden of enforcement on Internet service providers. The next court decision in the case could be crucial to the structure of the Net.

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By Rex Moore (TMF Orangeblood)
September 16, 2002

There's an interesting court battle shaping up between Verizon Communications (NYSE: VZ) and the Recording Industry Association of America (RIAA), one that could have far-reaching consequences.

Besides being the largest phone company in the U.S., Verizon also provides high-speed Internet access to thousands of users. The RIAA is a trade group representing the recording industry. Normally allies in the fight against music piracy, the two parties are on opposite sides of the fence in a case involving Internet service providers (ISPs), privacy groups, music lovers, artists, and more.

The case boils down to this: The RIAA has identified a computer it believes is illegally distributing a large amount of copyrighted music through a file-sharing program. It has asked Verizon to block that user's access and turn over his name, but Verizon refuses to cooperate.

The RIAA has been fighting online music sharing since Napster exploded onto the scene in 1999. With hundreds of thousands of users illegally swapping millions of files, the record folks had reason to worry. Napster was one of the fastest-growing services ever, and a huge debate ensued over how it was affecting music sales.

The RIAA claimed Napster and similar services were responsible for taking a big bite out of sales. Many disagreed, however, saying the file-sharing sites were increasing the popularity of music, and that heavy users tended to increase their music buying. Each side has produced research supporting its particular point of view.

Whether Napster hurt or helped music sales, there was no question that it was facilitating the exchange of copyrighted music. The record industry went to court and succeeded in shutting down the service.

Rather than marking the end of file sharing, however, it was instead the beginning of a new era. Services using a centralized database, such as Napster, began to die out, while decentralized peer-to-peer services sprang up like mushrooms in a cow pasture after a heavy rain. Names like KaZaA, Morpheus, WinMX, BearShare, and LimeWire now rule. Because these services are indexed off users' computers and not a central server, they are much more elusive in nature and much harder to prosecute than Napster. As a result, file sharing is far more popular now than even in Napster's heyday.

Which brings us to...
The RIAA is frustrated. CD sales are down 7% this year, and though its evidence is questionable, the RIAA lays the blame squarely at the feet of illegal file-sharing services. In an effort to uncover the biggest abusers, it uses a special type of software called a "bot" that searches the Internet for certain types of files. If it sees a large number of music files in one location, it marks that unique IP address. It cannot, however, discover a user's name unless an ISP chooses to reveal it.

That brings us to the current situation. The RIAA has issued a subpoena for a user's name, but Verizon is balking... and with good reason. The record group attempted to use an expedited subpoena process that it says is covered under a section of the Digital Millennium Copyright Act (DMCA). That process didn't even involve filing a lawsuit against the user or going through a judge.

Yes, the RIAA is trying to pry a name loose from an ISP without due process. If Verizon relented, it might open itself to a host of lawsuits. If other ISPs -- such as AT&T (NYSE: T), EarthLink (Nasdaq: ELNK), SBC Communications (NYSE: SBC), and AOL (NYSE: AOL) -- did the same, it could mean that any corporation could get your name. It could mean you'd no longer be able to surf the Net in anonymity.

It would also force ISPs to police the actions of those who simply connect to their service. Remember, the RIAA is not asking for information stored on Verizon's servers. It wants the name of a user because of files he has on his computer. As Verizon says, it's nothing more than a "passive conduit" and shouldn't be liable for what's on someone's computer.

More implications
While this case will test the limits of how far the recording industry can go to track down a user, it may also affect the very structure of the Internet. If ISPs are forced to become policemen and constantly cooperate with the whims of organizations and individuals, it will be cost-prohibitive.

This is not fantasy; it's a very real possibility. The Motion Picture Association of America (MPAA) uses the same bot software as the RIAA to patrol the Net for illegal copies of movies. When it finds them, it sends a letter to the user's ISP. One agency estimates the MPAA sent out 54,000 letters last year, and that the total could reach 100,000 this year. Imagine if an ISP actually had to cooperate with the requests of dozens of such agencies!

Verizon says it would have no qualms identifying the user if the RIAA would file a lawsuit against the alleged violator and then subpoena for the name. Instead, it "would like to be able to serve millions of these types of subpoenas and collect subscriber names," Verizon attorney Sarah Deutsch told The Washington Post, "and then pick out the most favorable for a lawsuit against the user community."

In other words, the record labels want the ISPs to do all the heavy enforcement for them. They also want to chip away even more at our quickly diminishing privacy rights.

State of affairs
The RIAA has asked a federal judge in Washington, D.C., to force Verizon to honor the subpoena. While the motion picture industry is backing the RIAA in court, Verizon has a collection of consumer and privacy groups on its side, as well as some 300 ISPs. Oral arguments could happen soon.

It will be interesting to see how it finally shakes out. Certainly, copyright violators should face prosecution. But as privacy advocate and attorney Megan Gray told BusinessWeek, "The RIAA alleging copyright infringement and evidence of copyright infringement are two different things."

It's the RIAA's prerogative to fight piracy as fiercely as it wishes. But in the process of doing so, it must respect due process -- and with it our privacy.

[Discuss this article and music piracy with fellow Fools on the Napster discussion board.]

Rex Moore lives and breathes that Philadelphia freedom. He owns no companies mentioned in this column, but you can see what he does own on his profile page. Today's fun is brought to you by The Motley Fool's disclosure policy.