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The entertainment industry’s copyright battle against rampant online music and movie file-swapping is heading to the Supreme Court. At its private conference Oct. 8, the Supreme Court will consider whether to add dozens of cases to its docket, including Recording Industry Association of America Inc. v. Verizon Internet Services Inc., No. 03-1579, which pits the recording industry’s copyright concerns against the privacy priorities of Internet service providers (ISPs) in a dispute over subpoenaing possible infringers. “Allowing massive, anonymous Internet piracy to continue unchecked has a corrosive effect on bedrock commitments to the rule of law and protection of private property on the Internet,” the RIAA’s lawyer, Donald Verrilli Jr. of the D.C. office of Jenner & Block, argues in a review petition. “At any given moment, four or five or six million people are copying files unlawfully online,” adds Verrilli in an interview. The RIAA is seeking to overturn a decision by the U.S. Court of Appeals for the D.C. Circuit last December that interpreted the Digital Millennium Copyright Act to bar subpoenas against an ISP in search of information about infringers, unless the copyrighted material at issue is stored on the ISP’s computers. To give the law the full force that Congress intended, Verrilli says the subpoena power should be read more broadly to include the “vast majority” of copyright infringers who store infringing material on home computers. Verrilli asserts that the D.C. Circuit “undoes the fundamental bargain” that led to passage of the act in 1998: that ISPs would be shielded from liability for copyright violations committed by their customers in exchange for agreement by ISPs to help combat online piracy. Under the law, even without filing lawsuits, copyright holders may have district court clerks issue subpoenas requiring ISPs to reveal the identity of subscribers they believe to be infringing their copyrights. When the RIAA used this mechanism in 2002 to seek the name of a Verizon customer who was disseminating more than 600 songs, Verizon resisted the subpoena, claiming on privacy and First Amendment grounds that the subpoena authority did not extend to customers storing material on their own computers. U.S. District Judge John Bates rejected that position as creating a “large loophole.” In a decision written by Chief Judge Douglas Ginsburg, the D.C. Circuit reversed, reasoning that since the ISP has no control over content on customers’ computers and could not remove the infringing material if it wanted to, the subpoena authority had to be limited. The decision guts the statute and makes it harder to fight piracy, says Verrilli. “The only way we can have an effective campaign is to know who the infringers are.” According to an amicus curiae brief filed by the Motion Picture Association of America and other industry groups, the D.C. Circuit ruling “already is having enormous and deleterious economic effect.” Piracy through systems like KaZaA and Morpheus have cost creative industries $13.6 billion in lost revenue annually, according to a brief by John Kester of D.C.’s Williams & Connolly. But Verizon counters that the narrowed subpoena power is not keeping the industry from “vigorously employing numerous legal tools” to go after infringers in other ways. Prime among those, says Andrew McBride of D.C.’s Wiley Rein & Fielding, is the so-called John Doe procedure traditionally used in litigation against anonymous defendants. In the wake of the D.C. Circuit ruling, recording companies have filed thousands of John Doe suits, requesting judges, not court clerks, to issue the subpoenas. “Having a court supervise the discovery is not a detriment, but a positive. It forces the companies to do their homework,” says McBride, Verizon’s counsel in the case. He says “rubber-stamp subpoenas” from clerks that the RIAA seeks are prone to error. Verrilli responds that cumbersome John Doe lawsuits are clogging the courts and are “way, way harder” than the subpoena method he thinks Congress intended. “ISPs are just trying to force us into a more difficult mechanism” that hampers enforcement, he says. Though not filing in the case before the Supreme Court, the Justice Department has sided with the recording industry in a similar case pending before the U.S. Court of Appeals for the 8th Circuit. Before the high court, the recording industry also has the support of Time Warner, which is notable because the company has interests on both sides of the dispute � owning movie, television, and book publishing companies that hold copyrights as well as owning ISPs such as AOL and Road Runner. In a brief by Henk Brands of Paul, Weiss, Rifkind, Wharton & Garrison, Time Warner urges the Court to take the case and allow for the kind of subpoenas RIAA seeks. “John Doe suits impede settlement,” he writes, because they require lawsuits to be filed first, whereas the other kind of subpoena allows for resolution short of filing a suit. OTHER CASES UP FOR REVIEWOrtega v. Star-Kist Foods Inc., No. 04-79. In a diversity action in which one plaintiff meets amount-in-controversy threshold, are judges authorized to exercise supplemental jurisdiction over additional plaintiffs who do not satisfy the requirement? • Norfolk & Western Railway Co. v. Anderson, No. 04-144. Whether a general release executed by plaintiff for asbestos-related injury is invalid under the Federal Employers’ Liability Act, allowing claims for asbestos-related cancer to be brought even though they are covered in the release. • Lingle v. Chevron USA Inc., No. 04-163. Whether a state law that caps rent an oil company can charge dealers who lease its service stations is an unconstitutional taking. • Comstock Resources Inc. v. Kennard, No. 04-165. Definition of “original source” for purposes of filing qui tam lawsuit under the False Claims Act. • U.S. Bank National Association v. HSBC Bank USA, No. 04-172. Enforcement of subordination agreements under Bankruptcy Code. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects cases from the many petitions filed based on several factors, including whether lower courts are split on the issues. He does not otherwise participate in the preparation of this column.

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