What is going on with the Recording Industry Association of America (RIAA)? After many years of waging a war against anyone and everyone that they thought illegally copied music, capturing many innocent people up with their Gustapo-like actions, and fighting with Internet Service Providers at every turn to get private information about users, the RIAA seems to have become a kinder, gentler organization lately. Not only has the RIAA fired MediaSentry, the company they used to collect information about suspected infringers, but now they are giving up on several cases where they went after college students for downloading and sharing music. What has gotten into the RIAA? Have they finally understood that it doesn’t make any sense to sue potential customers? Are they finally willing to embrace technology? Have the figured out that they can actually make money with new technologies? Of course, the technologies are not new to the rest of us, but undoubtedly new to the RIAA given they have spent most of the last decade trying to kill what they perceived to be evil compression technologies.
It is really hard to figure out what it going on with the RIAA these days. If you ask me, the real reason that the RIAA is starting to act a little different and perhaps even logical is because President-elect Obama recently appointed the RIAA’s favorite litigation attorney to be third in command at the Justice Department. On Monday, January 5, 2009, Barack Obama appointed Tom Perrelli, the Managing Partner in the Washington, DC law firm of Jenner & Block, to be the Deputy Attorney General. Could this mean that the RIAA doesn’t think that they have to go after infringers on their own any more?
With a friendly face in a very high ranking position in the US Department of Justice you would have to think that there is strong reason to suspect that while the RIAA may stand down the United States will take up the charge and go after Internet Service Providers and those who download music with the full weight of the the government. If this happens watch out! The love affair with the Obama Administration may be short lived indeed. Stanford law professor Larry Lessig, who has crusaded against over-reaching copyright enforcement endorsed Obama during the campaign. One would have to think this appointment would make him feel betrayed, and it should.
Perrelli represented the RIAA in a number of cases over the years, including a high-profile case where the RIAA sued Internet Service Providers to give up the names of people suspected of engaging in illegal downloading of copyrighted music. At the heart of this dispute was the need for the RIAA to be given the names and contact information of those suspected of engaging in unauthorized and illegal file trading. The only way for the RIAA to get this information in most, if not all, cases is to have the Internet Service Providers turn over the names and information. The RIAA, relying upon the Digital Millennium Copyright Act, began issuing subpoenas, which are essentially court orders requiring that the requested information be turned over. Many names were turned over to the RIAA, but several ISPs, including Verizon, challenged the subpoenas. Verizon was not successful at challenging the subpoenas at the district court level, but on December 19, 2003, Verizon scored a huge victory thanks to the decision of the United States Court of Appeals for the District of Columbia, thereby handing the RIAA a big defeat in their war against online infringement.
Verizon argued that the two subpoenas obtained by the RIAA are fatally flawed because in order for a subpoena to issue under § 512(h) there must be a notification as is described in subsection (c)(3)(A). Specifically, § 512(h) allows a copyright owner to request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer. § 512(h) also requires the copyright owner to attach to the subpoena request a copy of a notification described in subsection (c)(3)(A). Therefore, if there is no notification as in subsection (c)(3)(A) there can be no subpoena under § 512(h). In this situation there was no notification and, therefore, the subpoenas were quashed. This had to be the result because § 512(c) deals with the situation where an Internet Service Provider receives notice that material which infringes a copyright resides on the ISP’s server. In this situation § 512(c) acts as a safe harbor, shielding the ISP from liability provided certain protocols are followed and infringing material is ultimately taken down. It can be seen that the subpoena allowed under § 512(h) is meant to give copyright owners the means for discovering the identity of infringers who have posted infringing material to the ISP server. In this case, there simply was no infringing material posted to any Verizon server. Verizon was merely a conduit. Therefore, the Clerk of Court should never have issued the subpoenas in the first place.
Those who followed the RIAA subpoena battles know that the attorneys for the RIAA were extraordinarily agressive, managed to get subpoenas when no subpoenas should have been granted and did not follow the law with respect to serving the subpoenas. It is alarming to now learn that the lawyer in charge is now going to be Deputy Attorney General of the United States. Where is the outcry? Had a Republican appointed someone to such a high position within the Department of Justice it would be front page news and there would be an enormous cry for an investigation. Oh well, that just isn’t going to happen in this case, so those who engage in unauthorized downloading you need to be very careful. The RIAA is going to be the least of your worries. And those of you who enjoy your privacy, well, you need to keep an eye on the hierarchy at the DOJ because Perrelli and his representation tactics were over-reaching in private practice so they are likely to be just as heavy handed moving forward.
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide