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Music piracy cases in Georgia could determine whether recording companies must meet certain standards before forcing Internet service providers to hand over the names of subscribers suspected of downloading and circulating copyrighted, bootleg recordings. Two federal judges in Atlanta have authorized representatives of 16 national recording companies to subpoena EarthLink Inc. and Cox Communications. The recording companies want the identities of individuals they believe have pirated recordings via the Internet. Motown Record Co. v. Does 1-252, No. 1:04CV0439 (N.D. Feb. 17, 2004). Virgin Records America v. Does 1-44, No. 1:04CV0438 (N.D. Feb. 17, 2004). EarthLink and Cox — which are not named as defendants in the Atlanta piracy suits — have not fought the subpoenas, though the judges gave them a 25-day window to decide whether to do so. That deadline expired in April. Neither EarthLink’s general counsel, chief privacy officer nor public information officer could be reached for comment. Cox’s general counsel, Randall J. Cadenhead, said that the recording companies served Cox with a subpoena on March 17. The company does not plan “at this time” to seek to quash it. “We believe we have a responsibility to our customers and their privacy but also to obey a subpoena that is valid on its face,” he said. But Cox has not yet released its subscribers’ identities. However, two Cox subscribers, identified in one of the Atlanta suits as Doe #106 and Doe #207, have sought through their Rhode Island attorneys to quash that subpoena. “Cox is in a precarious position because they have a privacy agreement with their users, and they don’t want to violate that agreement,” said Bristol, R.I., attorney Neville J. Bedford, who represents a Cox subscriber identified as Doe #106. “At this point, we are waiting to find out how the court rules on our motion to see if Cox actually has to disclose our clients’ names,” said Providence, R.I., attorney Robert S. Salter, who is defending Doe #207. Last month, Cox sent a letter to U.S. District Judge Willis B. Hunt Jr. asking whether his ruling in those motions will be applicable to the remaining defendants. In both cases, the American Civil Liberties Union, the San Francisco-based Electronic Frontier Foundation and public interest group Public Citizen have entered or are seeking to enter the suits as amici on behalf of 296 anonymous Internet users whose identities the recording companies are seeking. DOZENS OF SUITS FILED The suits are among six copyright infringement suits filed in Atlanta this year by members of the Recording Industry Association of America. They are among dozens of suits the industry, beginning last year, has filed across the country in an effort to curb rampant piracy and sharing of copyrighted recordings via Internet peer-to-peer networks. The RIAA, a national trade association for the music recording companies, claims that music pirates are to blame for a 10 percent drop in CD sales and revenue since 2002. Beginning last year, in a highly publicized campaign, RIAA-member recording companies filed suit against suspected anonymous Internet music pirates whom industry investigators had identified through Internet file share networks. The suits — filed in California, Colorado, Missouri, Texas and Virginia — identified 443 file sharers of pirated recordings, according to the RIAA. This year, recording companies filed a new round of suits in Georgia, New Jersey, Arizona, California, Colorado, Florida, Indiana, Maryland, Michigan, New York, Pennsylvania, Tennessee, Washington and Wisconsin against more than 750 file sharers suspected of copyright infringement. Twelve of those complaints identified universities as the ISPs. In last year’s suits, the complaints listed anonymous defendants — whose identities they sought from ISPs — suspected of downloading pirated recordings. Suits filed this year are targeting individuals who are making available files containing pirated recordings on peer-to-peer networks. Under federal law, copyright holders can sue infringers for damages from $750-$150,000 for each copyrighted work illegally copied or distributed. So far, the courts have appeared amenable to the recording industry suits. In four states where cases were filed last year, federal judges have granted the plaintiff recording companies’ requests to issue subpoenas to ISPs to learn the identity of file sharers, according to the RIAA. Last month, U.S. District Judges Hunt and Clarence Cooper authorized recording companies to issue subpoenas to obtain the identities of defendants who were customers of EarthLink and Cox. A ‘FISHING EXPEDITION’ Gerald R. Weber Jr., the Georgia ACLU’s legal director, said the recording industry’s attempts to mine ISPs’ rosters for the names of users suspected of copyright infringement are a potential violation of the First Amendment. The problem, as he sees it, is that ISPs shouldn’t be forced to identify their customers and provide their contact information to outside parties absent clear evidence that those customers have violated the law. “There must be a compelling reason to unveil one’s anonymous communications on the Internet,” he said. “The Supreme Court has consistently held that one has a right to engage in free speech anonymously” — a right, he said, that dates back to American Revolutionary War pamphleteers. Weber argued that allegations of copyright infringement are not enough to dissolve the veil of anonymity provided to Internet users. The courts, he said, should require convincing evidence before allowing subpoenas to be issued to ISPs. In seeking the identities of individuals suspected of piracy, the recording companies so far have not proven that hundreds of John and Jane Doe account holders downloaded illegally the copyrighted files they have listed on peer-to-peer networks, Weber said. The record companies are on a “fishing expedition,” Weber said. The ACLU acknowledged that the suits demonstrate the need for a balance between the First Amendment’s protection of anonymous speech and the right to obtain otherwise privileged information that would identify suspected lawbreakers. In addressing this need for balance, federal courts “have wrestled with the fact that, at the outset of the litigation, the plaintiff has done no more than allege wrongdoing, and a privilege is generally not considered to be overcome by mere allegations,” the ACLU brief states. “They have further recognized that a serious chilling effect on anonymous speech would result if Internet speakers knew they could be identified by persons who merely allege wrongdoing.” The ACLU also rejected the recording companies’ assertions that the defendants waived their privileges to communicate anonymously by disclosing their identities to their ISPs. “Indeed, speech is rarely literally anonymous to all persons at all times; if such nondisclosure were the precondition for application of the First Amendment, there would be no right to speak anonymously as a practical matter. But that is not the law.” STANDARDS FOR DISCLOSURE SOUGHT The ACLU suggested that certain standards be imposed before an ISP reveals the identities of its subscribers. Those standards include using the Internet to notify anonymous defendants of efforts to unveil them, presenting evidence to a court supporting the damage claim, and showing the court that the instances of copyright infringement alleged outweigh First Amendment protections. But lawyers for the recording companies argued in their motions that the defendants participated “in an online swap meet, offering copyrighted sound recordings for download to each other and downloading copyrighted sound recordings from each other. Each defendant has chosen to make available from his or her computer hundreds or thousands of copyrighted sound recordings unlawfully (in exchange for the chance to copy millions of files illegally copied and disseminated by others.)” Recording executives have identified EarthLink and Cox as ISPs used by the defendants, through the Internet protocol addresses each defendant used. What the executives want are the names, addresses and other available contact information for the people assigned those Internet addresses. RIAA: THERE’S NO OTHER WAY Unless EarthLink and Cox disclose the identities, the recording companies argued that they have no way to remedy the problem. In separate rulings, Hunt and Cooper agreed. Their orders allow attorneys for the recording industry to subpoena EarthLink and Cox for identifying information about 296 online users. In his order, Cooper granted the recording companies’ request because “the complaint alleges a prima facie case of copyright infringement, and … the law cannot proceed until defendants are properly identified.” But both judges also required that Cox and EarthLink notify their subscribers of the subpoenas within five business days. And both judges gave the defendants and their service providers 25 days to quash the subpoenas or otherwise respond to the complaint. So far, neither Cox nor EarthLink has attempted to quash the subpoenas. But two of the Doe defendants who use Cox as their service provider, Doe #106 and Doe #207, have retained attorneys. Bedford, of Rhode Island, argued in his motion that his client, Doe #106, “has absolutely no contacts with the state of Georgia” and cannot be subject to a suit filed in this state. In seeking to quash the subpoena in the Motown case, Bedford’s motion argued that the recording companies cannot band together to sue 252 defendants collectively who have no relationship other than that they use the same ISP. The recording companies, Bedford argued, “have failed to show the infringing activity arises from the same transaction or occurrence or series of transactions or occurrences. … The claims against the different defendants will require separate trials because they involve separate witnesses, different evidence … different legal theories and defenses.”

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