Declan's FAQ on RIAA v. Verizon

Declan McCullagh has a nice FAQ on the D.C. Circuit's ruling in RIAA v. Verizon [pdf]. And right next door, John Borland has more formal coverage ("Court: RIAA lawsuit strategy illegal").

DC Circuit stumps RIAA

By now the world has heard of the D.C. Circuit decision in RIAA v. Verizon. Previously, the D.C. District Court ruled that Verizon must comply with RIAA's subpoenas, issued under § 512 of the Digital Millennium Copyright Act (DMCA). Those subpoenas are designed to force ISPs to disclose the identities of users whom RIAA suspects of illegally making copyrighted music available for others to download. RIAA can trace users by itself as far as their IP addresses (the sets of numbers that uniquely identifies every computer on the Internet), but it needs the cooperation of ISPs to connect an IP address with an individual's name and address. Once it has that information, it can send a cease & desist letter or file a lawsuit.

Yesterday's Circuit decision reverses the District Court's interpretation of the statute. The appeals court gave the statute an extremely close reading in rendering its decision. The relevant section has a complex sentence structure and many cross references, so it is no wonder that the parties (and two different courts) disagreed as to its meaning. Derek Slater makes a few interesting points, including: "I find it fascinating when opinions contrast in this way — when they see the same issue clearly, unambiguously, but oppositely. [District] Judge Bates, just like [Circuit Judge] Ginsburg, claims to stick to the statute's text and go no further, yet their opinions are night and day."

I think Donna's headline over at Copyfight goes too far: "Verizon Wins Victory for Privacy." I am in Ernest's camp on this one:

The decision is a victory for privacy, but not a victory for privacy as such. The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. […] The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.

This line of reasoning rests on the cross references between § 512(h) and § 512(c). Subsection (h) permits a copyright owner to apply to the Clerk of the court for a subpoena so long as the application contains "a copy of a notification [of claimed copyright infringement, as] described in [§ 512](c)(3)(A)." The relevant language in § 512(c)(3)(A) is: "To be effective under this subsection, a notification of claimed infringement must be a written communication … that includes substantially the following" six elements. The third enumerated element is "(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material." (Emphasis added)

The court agreed with Verizon that this language requires the subpoena application to assert that the ISP has the ability to remove or disable access to the allegedly infringing material. However, most current P2P applications use a decentralized architecture. This means that all shared data is stored on users' computers, not on any central server — except for temporary copies incidental to transmission, which the DMCA permits. Therefore, the ISP has no legal right to remove or disable access to the material shared on the P2P network:

No matter what information the copyright owner may provide [in its subpoena application], the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.

This holding does have some privacy implications, but they are small compared to Verizon's alternative argument. Having decided this case on statutory grounds, the court ducked the larger First Amendment questions.

So what implications does it have? Dozens of people predict that RIAA will lobby Congress to close what it surely sees as a loophole in the DMCA. Ernest quipped, "[T]he RIAA has nearly hosed itself." The trade group has been trying to consolidate all its DMCA subpoena litigation in Washington, D.C. for administrative convenience. Now, however, it cannot be happy with its "success" in transferring the SBC case to the D.C. District from the Northern District of California in San Francisco — because the Verizon decision is now binding precedent in the nation's capital. This will not stop RIAA from getting users' information, however. It will only make the process slower and more expensive. Instead of paying its lawyers simply to draft subpoena applications, it now has to pay them to draft and file complaints and motions in addition to subpoena applications. These costs will be passed on to consumers in the form of higher average settlements.

John Palfrey sees a broader trend: "Add this development to the Grokster opinion, and the trend of the law in favor of digital rights holders is at least in a holding pattern." The trend may be even broader than Palfrey recognizes — this was a banner week for civil liberties everywhere. (It could, however, be just a blip on the post-9/11 radar screen.) The Dutch supreme court ruled that the makers of Kazaa are not liable under Dutch law for copyright infringement committed by the software's users. A day earlier, the Second Circuit ruled that the U.S. government may not classify Jose Padilla as an enemy combatant — which should assure that his constitutional rights are no longer suspended. Just a few hours later, the Ninth Circuit wrote "that the [Bush] administration's policy of imprisoning about 660 non-citizens on a naval base in Guantanamo Bay, Cuba, without access to U.S. legal protections 'raises the gravest concerns under both American and international law'" (source).

If nothing else, we live in interesting times.

Dutch high court: Kazaa not liable

The Dutch supreme court has ruled that the makers of Kazaa are not liable for illegal use of the software by users. Reuters UK reports ("Dutch Court Throws Out Attempt to Control Kazaa"):

The decision by the Dutch court, the highest European body yet to rule on file-sharing software, means that the developers of the software cannot be held liable for how individuals use it. It does not address issues over individuals' use of such networks. […] The Supreme Court rejected demands by Buma Stemra, the Dutch royalties collection society, that distribution of Kazaa cease and that future versions be modified so that copyrighted materials cannot be exchanged over the network, lawyers representing Kazaa said.

Canadian FUD

The last five days have brought big copyright news from the Great White North — allegedly also known as "Canada." First, the Canadian Copyright Board issued a decision levying fees on many new media and interpreting Canadian law to permit downloading (but not uploading) of copyrighted works via P2P networks. Then the National Post reported that the Canadian Recording Industry Association (CRIA) might soon begin suing file sharers, ala RIAA.

During this time, I have been reading up on CRIA's chief, Brian Robertson. While he is reluctant to discuss CRIA's lawsuit plans, he loves to talk about the number 30. That is the percentage of revenue he claims the Canadian recording industry has lost due to file sharing. As far as I can tell, he has never cited any source for this figure, and the next-highest estimate is 23% — and many estimates are even lower. Sources: CRIA press release, Globe & Mail, National Post, LA Times. Additionally, CRIA (like RIAA) fails to acknowledge that the recent recession might have had a negative effect on music sales equal or greater to the effect of file sharing.

CRIA Follows Big Brother's Lead

Both Big Brothers, actually. The National Post reports ("Music sharers to face lawsuits"):

The millions of Canadians who share music files on the Internet should be prepared for the possibility of facing a lawsuit early in the new year, the head of the Canadian Recording Industry Association said yesterday. … [Brian] Robertson would not specify how many lawsuits would be filed, but he did say the legal action would be similar to the lawsuits filed in the United States. For some time, CRIA has been using software that tracks and identifies users involved in trading free music files. "Users should be aware that using file-sharing services is a very public process," Mr. Robertson said.

Update: Canadian decision on downloading

Yesterday I blogged on the Canadian Copyright Board's conclusion that P2P downloading is legal (under Canadian law, of course) and posted a link to C|Net coverage. Here are a few more documents:

• Full text [pdf] of the Copyright Board's decision
• Press release from the Copyright Board
• FAQ on the decision

• Tech News World
• Ars Technica
• Toronto Star

God Considers Smiting Copyright Pirates

Another item via BoingBoing (a banner day over there, I guess):

God is considering his options for action against Bible pirates. "God did not rule out smiting as a final measure against those who share his most famous work, the Bible, on the Internet," wrote Kristian Werner of BBspot Technology News.

Citing misuse of His word, misquotation, and putting hardworking Bible printers out of work, God said he would now start hunting Bible pirating around the globe. "I have to defend both my world-famous brand — the Bible and its distinctive likenesses — and the livelihood of those who create and distribute legal copies of it. Sure, they live not by bread alone, but website hits — someone else's website mind you — don't pay the bills for these folks."

Since large portions of the Bible are many centuries old, many people believe the work to be in the public domain. Not so, said God. "Look, most copyright laws are based on something like the author's lifetime plus, let's say, 15 years. News flash: I'm still here."

Canada deems P2P downloading legal

This C|Net headline says it all (link to article).