New Bill Could Aid Music File Sharers
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By Erika Morphy
September 17, 2003
There is a growing consumer backlash against the RIAA, which is being felt in Congress, says Gartner2 analyst Mike McGuire. "Ultimately, this issue could have some serious political implications for the music industry."
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A bill has been introduced in the U.S. Senate that could significantly curtail the Recording Industry Association of America's recent -- and quite successful -- offensive against individuals who share music files over the Internet. If passed, the legislation would end the RIAA's flood of subpoenas to Internet service providers demanding the identities of their customers who use such online file-sharing services as Morpheus and Kazaa .
Introduced by Senator Sam Brownback (R-Kansas), the "Consumers, Schools, and Libraries Digital Rights Management (DRM) Awareness Act of 2003" would prevent copyright holders from compelling an ISP to disclose the names or other identifying information of its subscribers prior to the filing of a suit -- a tactic that critics and civil libertarians decry as unconstitutional and an invasion of privacy .
This issue has been hashed out in court and, in fact, is being reviewed again as Verizon argues before a panel of federal judges that the lower-court decision that required it to turn over its customers' names was incorrect. That decision acknowledged the right of the RIAA to subpoena Verizon for the identity of an Internet user thought to be using Verizon broadband to post thousands of songs online. The RIAA based its argument on a provision contained in 1998's Digital Millennium Copyright Act.
Hail Mary Pass
The bill would not give ISPs a Hail Mary pass, though it does come close.
"Senator Brownback's bill ensures adequate court oversight is in place before copyright holders can force ISPs to disclose the identities of Internet users," said Electronic Frontier Foundation staff attorney Wendy Seltzer.
Provisions include requirements for the "conspicuous" labeling of CDs, DVDs and software that limits consumer uses with digital-rights management" (DRM) restrictions and curtailing the Federal Communication Commission's ability to impose federal regulations on digital-television innovators.
Thus far, the RIAA's use of subpoenas has been the one action that has noticeably slowed activity on file-sharing sites. Depending on enforcement, and perhaps even more on litigation filed, the bill would slow -- but not necessarily halt completely -- the RIAA's attention-getting strategy.
Of course, this is a moot point if the bill does not become law. However, there is a growing consumer backlash against the RIAA, which is being felt in Congress, Mike McGuire, Media Research Director for GartnerG2 told NewsFactor.
"Ultimately, this issue could have some serious political implications for the music industry -- especially if enough people get upset at the sight of grandparents losing their house because their grandkids used their computers to download music," he said.
"These issues have by no means been settled yet," EFT staff attorney Jason Schultz told NewsFactor. "Sooner or later, Congress will have to step in to protect consumers' rights."
Other bills making their way through Congress include those of Senator Ron Wyden (D-Oregon), Representative Zoe Lofgren (D-California), and Representative Rick Boucher (D-Virginia).
Appealing the Betamax Model
In separate news, StreamCast Networks, the developer of Morpheus, has filed its brief in an appeal of a court decision that the P2P networks originally hailed as a significant victory. Ruling on a suit filed by Grokster and Morpheus against 28 entertainment companies, a federal court had declared the music industry could not shut down P2P software makers for the copyright infringements of their users when the software has significant legitimate uses. The court ruled that the Morpheus software was no different from a VCR or copy machine, citing the 1984 Supreme Court decision that held that Sony (NYSE: SNE) was not responsible for copyright infringement by Betamax VCR users.
The entertainment companies have appealed the case to the federal Ninth Circuit Court of Appeals in San Francisco. The court has not yet scheduled oral argument on the case.