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The U.S. Court of Appeals for the D.C. Circuit heard spirited arguments last week about a key tactic in the music industry’s efforts to eradicate song piracy on the Internet. The Sept. 16 proceeding touched on arcane statutory issues as much as it did on the industry’s anti-piracy campaign, as a three-judge panel of the court took up an appeal by Verizon Internet Services. The company is challenging district court rulings that required it to turn over the names of alleged violators in response to industry subpoenas. In the 50-minute argument, the judges showed considerable Internet savvy as well as familiarity with the minutiae of the Digital Millennium Copyright Act (DMCA) — the 1998 law that the Recording Industry Association of America is using to get subscribers’ names from Verizon and other Internet service providers. In two decisions earlier this year, U.S. District Judge John Bates ruled against Verizon. In June, the appeals court refused to stay his ruling, and Verizon handed over the names. The company, however, continued its legal fight, and the appeals court decision would affect any future subpoenas. The RIAA has issued at least 1,500 subpoenas nationwide under the DMCA and earlier this month sued 261 people whom it accused of piracy. Andrew McBride of D.C.’s Wiley Rein & Fielding, arguing for Verizon, began his presentation with the broad statement that Bates’ ruling would endanger the privacy of “anyone who uses e-mail or browses on the Internet.” But the three judges — Chief Judge Douglas Ginsburg, Senior Judge Stephen Williams, and Judge John Roberts Jr.– were much less interested in listening to sweeping policy arguments than in figuring out whether Congress intended the law to apply to so-called peer-to-peer sharing of files. That method was pioneered by services like KaZaA but did not exist when the law was enacted. “Technology has eliminated the middleman with peer-to-peer,” Roberts said. “Why shouldn’t we apply the statute to what Congress intended?” McBride responded, “There is an important interest to be balanced against it. We value our subscribers’ privacy.” Roberts continued, “But you make money out of piracy. The pirates are the heavy users of your broadband service.” McBride quickly retorted, “That is a canard and ought to be rebutted immediately. We don’t condone piracy. And peer-to-peer wasn’t even a glimmer in the eye of Congress when it passed the statute.” Ginsburg then said, “Well, it was file transfer protocol [that Congress was concerned about]. There was an article in Salon about songs being downloaded on computers and how much worse the problem was going to become. That was in March 1998.” Donald Verrilli Jr. of the D.C. office of Jenner & Block, arguing for the RIAA, told the judges that subpoenas under the copyright act are not intended “to enforce rights against the Internet provider, but against the infringing user. It’s just that the only entity that knows the identity of the user is the service provider.” Then Verrilli picked up on Ginsburg’s point about congressional intent. “Verizon’s approach would make hash out of the fundamental tool of the statute,” Verrilli said. “Peer-to-peer was not yet a reality, but Congress understood that infringement on home computers was a serious problem.” Roberts replied, “But the underlying activity is very different. [Peer-to-peer] is more equivalent to my leaving the door to my library open. That doesn’t make me liable for infringement.” Verrilli said that Verizon had cited “absolutely nothing for the proposition that Congress didn’t have this in mind.” Scott McIntosh of the Department of Justice, given five minutes of argument time to defend the constitutionality of procedures under the DMCA, said, “I don’t see a separation of powers problem here, any more than in any case where a court clerk issues a subpoena.” Verizon contends that by permitting subpoenas to be issued to Internet service providers before a copyright infringement case is filed, the statute gives the courts excessive authority and violates the Constitution.

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