RIAA MAY FACE HURDLES IN BID TO SUE FILE-TRADERS, EXPERTS SAY

ISPs may fight subpoenas for subscribers’ identities, and subpoena and search charges would add litigation expenses that RIAA has resisted. Lawsuits against users also risk creating a consumer backlash, they said, and more-elusive alternatives for music-sharing exist. RIAA’s ability to get the kind of fast- track Digital Millennium Copyright Act subpoenas on which its litigation campaign is premised has been tested only through the district court level in D.C., in the Verizon case, said Internet Commerce Coalition Gen. Counsel James Halpert. Opinion isn’t binding elsewhere, raising distinct possibility ISPs would resist RIAA efforts to compel production of subscriber information, he said.

RIAA will be on hook for a $35 court fee plus an ISP’s search fee under Federal Rule of Civil Procedure 45 for any subpoena that’s issued, said Verizon Vp/Assoc. Gen. Counsel Sarah Deutsch. In D.C. litigation, RIAA tried to bundle multiple information requests in a single subpoena application, but separated them when Verizon said it would challenge practice, she said. Assn. has yet to pay a search bill that accompanied customer information whose release was compelled, Deutsch said. Verizon, like AOL, charges $75 per hour for such work, which typically takes 30-45 min. and is prolonged when a dynamic IP address is involved, she said. With RIAA promising to file hundreds of complaints late this summer, subpoena costs could run well into 5 figures.

Any lack of precision in selecting defendants could create a political or legal backlash, lawyers said. “That’s the experiment the recording industry is trying: whether they can go against some music users without alienating the rest,” said Public Knowledge Senior Technology Counsel Mike Godwin. It’s not clear RIAA will only go after culpable people, Halpert said. Those who throw open their connections as Wi-Fi hotspots, for instance, may open themselves to suit based on their IP addresses and file-sharing of those using hotspots, he said. RIAA Pres. Cary Sherman said he was confident of accuracy of identification methods but that Assn. would promptly remedy any errors.

Electronic Frontier Foundation took advantage of opportunity Thurs. to launch a campaign, under slogan “File-Sharing: It’s Music to our Ears,” to defend swapping by linking it to compulsory licensing or other mechanisms for compensating artists. “It’s time for Congress to start paying more attention to the 57 million Americans who use file sharing, and less to RIAA lobbyists,” said Electronic Frontier Foundation Senior Counsel Fred von Lohmann.

RIAA isn’t in a position to make stick choice it’s trying to pose to users -- give up music-sharing or live under a cloud of legal exposure -- critics said. “Technical countermeasures are available, if people should want to hide their identity,” said Princeton U. computer-science Prof. Edward Felten. “The P2P companies might include stronger anonymity protections in their product. Users might work harder to protect their anonymity.” Trading can be done via instant messaging, chat rooms and CD- burning parties. With at least some file-sharing software, users can take copies without making them available off their own hard drives; RIAA said it’s going after only uploaders at this stage.

Software that makes users less visible is available. “I fully expect that ‘hardened’ P2P software, such as Freenet will become increasingly popular,” von Lohmann said. Electronic Privacy Information Center Deputy Counsel Chris Hoofnagle said users can evade liability by using European proxy servers or forthcoming end-to-end encryption technology.

Meanwhile, House members continued endorsing RIAA’s stand. “The record companies’ announced plan to bring lawsuits against peer to peer users who are illegally offering their music collection to millions of others is a much needed response,” said Rep. Goodlatte (R-Va.). Rep. Carter (R-Tex.) said: “It is time to notice the lawbreakers pirating music and put a stop to their actions.”