The laws pertaining to activity over the Internet continues to evolve (and flip flop). An example is the ability of a copyright owner, e.g., owner of a popular music recording, to subpoena an ISP to disclose the “real world identity “ behind a computer IP address1 that is downloading (“pirating”) copyrighted music. Of course, when the music is pirated, versus purchased, the owner losses money.

Napster is old news. The ink is not very dry on the Digital Millennium Copyright Act (“DCMA” and enacted in 1998 as an amendment to the Copyright law) but already appears to be antiquated. Peer to Peer (“P2P”) file sharing, which does not require storing of content on an ISP server, has caused confusion under the DCMA amendment. At issue is whether an ISP providing internet access to a customer engaged in P2P file swapping must respond to a subpoena issued in accordance with §512(h) of Federal Copyright law2, as amended by the DMCA.

In Peer to Peer file sharing, the files are passed through infinitely differing connections within the Internet. The file sharers contact each other using indexes provided by entities such as KaZaA. The file content is passed directly between the parties. An ISP is not required and may merely provide the Internet link or conduit for one of the parties to the file sharing. Peer to Peer filing sharing is akin to the operation of “instant messaging.”

In July, 2002, the Recording Industry Association of America (“RIAA”) subpoenaed records of an ISP (Verizon Internet Services). RIAA wanted to know the identity of the Verizon customer that had downloaded approximately 600 copyrighted song within a 24 hour period. Verizon refused to provided the information and RIAA went to court to enforce the subpoena. The dispute centered upon the statutory interpretation of the DMCA amendments to the Copyright law. The DCMA created “safe harbors” for ISPs from liability for copyright infringement. The applicability of the safe harbors depended upon whether the ISP could show its behavior fit within one of four alternative classifications. The safe harbor categories are set out in §512 (a) – (d). Major discussion was upon whether only certain ISPs, although immune from liability for copyright infringement, were obligated to respond to a subpoena issued on behalf of a party suspecting a customer of the ISP was infringing its copyright. Verizon argued that it would be obligated to respond to a subpoena only if the copyrighted information had been stored or cached on the IPS’s server (which does not occur in Peer to Peer file sharing).

The D.C. District Court analyzed the “new” amendment to the Copyright law and ultimately ordered Verizon to provide the customer identity to the RIAA (presumably so the RIAA could then sue the customer for copyright infringement).3

Verizon appealed, arguing that the subpoena powers set forth is §512(h) does not apply to an ISP that is only acting as a conduit for communication, the content of which is determined by other. Verizon further objected that if the DMCA really did require the ISP to disclose customer identity when the ISP had such minimal activity then the DMCA was unconstitutional since there was no “case or controversy” pending would give the court jurisdiction under Article III of the U.S. Constitution to order action by a citizen. Further, Verizon argued that such subpoena would violate the 1st amendment free speech rights of the ISP customer.

Although the District Court had rejected these arguments, the Federal Appeals Court narrowed the rights of a third party to subpoena ISP records to those circumstances where the ISP was storing the “pirated” copyright protected files on the ISP’s servers.4

What is significant is that a statutory amendment intended to resolve copyright issues related to the Internet failed to address Peer to Peer networking, which was probably not even on the radar screen of problems at the time the statute was drafted and debated.

1 An IP address is the Internet protocol address indicating the exact connection between a particular computer and the network on the Internet. The IP address is a 32-bit address that consists of four octets, expressed as four numbers between 0 and 255, separated by periods (e.g. Every Internet site is assigned a unique IP address. Internet and Technology Law Desk Reference, Aspen Law & Business, 2002.

2 Title 17 U.S.C. §§ 101 et seq.

3 RIAA, Inc. v. Verizon Internet Services Inc., 240 F.Supp. 2d 26, 65 U.S.P.Q. 2d 1575.

4 RIAA. Inc. v. Verizon Internet Services Inc., 351 F.3d 1299 (D.D.C. 2003).