RIAA SUBPOENA ANSWERS DON'T ERASE CONCERNS, PANEL CHMN. SAYS

Permanent Investigations Subcommittee Chmn. Coleman (R- Minn.) said he remained concerned about “the potential for abuse of the subpoena process” established under Digital Millennium Copyright Act (DMCA) and making sure “the punishment for violators fit the crime.” Hearings to be held soon will be broadened to examine criminal penalties for file sharing and consumer protection issues in peer-to-peer network use, officials said. One hearing is planned for Sept., subcommittee aide told us last week. Coleman said RIAA promised to provide unspecified additional materials to show it wasn’t targeting small-time file traders unnecessarily.

Panel released RIAA’s 11-page response to questions Coleman had posed in letter July 31 (WID Aug 4 p1). They had focused on: (1) Whether RIAA’s subpoena barrage targeted only high-volume music traders, as Assn. said, or hit many less culpable Internet users, as critics charged. (2) RIAA’s use of controversial DMCA Sec. 512(h), allowing copyright owners to get subpoenas for user information issued to ISPs without filing judicial review or even a lawsuit. Coleman said letter showed RIAA’s file-sharing concerns were justified and he was gratified Assn. said it was going after only “egregious” infringers.

RIAA’s letter, signed by Pres. Cary Sherman, said Assn. had been selective and meticulous in choosing subpoena targets and had sought them only after years of less drastic and unsuccessful measures to deal with disastrous impact of file sharing. Assn. said DMCA subpoena procedure was less intrusive than alternatives. RIAA also said ISPs, not itself, were responsible for burden on D.C. Dist. Court clerk’s office, where subpoena requests were filed. “The RIAA is giving no commitments here,” Electronic Frontier Foundation lawyer Wendy Seltzer said. “They're saying, ‘Trust us. We're not going to do anything bad.'”

RIAA insisted it hadn’t gone after “de minimis” or small- time, traders, but didn’t disclose any specifics of its criteria. “RIAA is gathering evidence and preparing lawsuits only against individual computer users who are illegally distributing a substantial amount of copyrighted music,” letter said. “The subpoenas issued at the request of the RIAA thus far involve infringers distributing very large numbers of copyrighted recordings. By way of example only, we have uncovered infringers with thousands of copyrighted recordings.”

If ISP subscribers receive subpoenas even though they haven’t been individuals using accounts for illegal downloads, that’s their responsibility, not RIAA’s, Sherman said. File- sharing computers are identified by Internet Protocol (IP) address, RIAA said. “To the extent the subscriber is not the one who is actually participating in the illegal downloading, RIAA cannot know that before it issues the subpoena and, in any event, the subscriber should be monitoring potential illegal uses of his or her Internet account. We suspect that, just as parents would want to know if their children were shoplifting at the local mall, they will want to know if their children are stealing music online.” Seltzer said ISP subscribers might not have secondary infringement liability for downloads by others using their accounts, and Internet users making their broadband connections available to Wi-Fi users should have the benefit of DMCA’s protection of ISPs.

DMCA subpoenas are restricted to identification and contact information, and data can’t be used except for copyright enforcement, letter said. Subpoena pursuant to “John Doe” lawsuit could seek any ISP account information, including user habits and payment records, and its use wouldn’t be restricted, it said. That comparison isn’t valid, Seltzer said. Objectionable intrusion under DMCA is subpoena issuance itself, and unavailability to subjects of motion to quash that could be used in John Doe case, she said.

RIAA told Coleman it shared his concern about court clerk’s workload. “RIAA is willing -- and would very much like -- to reduce substantially the number of subpoenas it issues by providing multiple IP addresses for the same ISP on each subpoena,” letter said. “RIAA believes the DMCA allows this practice but, because many of the ISPs have objected, to date the RIAA has issued separate subpoenas for each IP address.” U.S. Internet Industry Assn. Pres. Dave McClure called that “patent nonsense” and said ISPs were looking out for subscribers’ due- process rights by trying to prevent RIAA from “scooping up IP addresses by the hundreds of thousands.”