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Court to Consider Music Industry Subpoenas

An Internet company wants a federal appeals panel to help disarm lawyers for the music industry, blocking them from using special copyright subpoenas in a campaign to track and sue computer users who download songs online.

Verizon Communications Inc. is challenging the constitutionality of the subpoenas under the 1998 Digital Millennium Copyright Act. A trial judge, John D. Bates, earlier had approved use of the subpoenas, forcing Verizon to turn over names and addresses for at least four Internet subscribers.

The 1998 law, passed years before music downloading was popularized, permits music companies and others to force Internet providers to turn over the names of suspected pirates upon subpoena from any U.S. District Court clerk’s office. A judge’s signature is not required.

Critics of the procedure contend judges ought to be more directly involved, given the potential privacy issues involved when a corporation is asked to reveal personal information about customers over an allegation of wrongdoing.

In an unprecedented crackdown on music piracy, the Washington-based Recording Industry Association of America has issued at least 1,500 such subpoenas this summer. It has filed civil lawsuits against 261 people so far it accused of illegally distributing music online and promised thousands more lawsuits.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit was being asked Tuesday to consider whether Bates correctly ruled against Verizon earlier this year. The panel includes Chief Justice Douglas Ginsburg and Senior Judge Stephen F. Williams, both Reagan appointees; and John Roberts, appointed by President Bush in May 2003.

Verizon had argued unsuccessfully that Internet providers should only respond to such subpoenas when pirated music is stored on computers that providers directly control, such as a Web site, rather than on a subscriber’s personal computers. It also said judges should approve requests for subscriber information only after “John Doe” civil lawsuits have been filed.

In his ruling, Bates criticized Verizon’s “strained reading” of the law. He wrote that Verizon’s interpretation “makes little sense from a policy standpoint,” and warned that it “would create a huge loophole in Congress’ effort to prevent copyright infringement on the Internet.”

Sen. Sam Brownback, R-Kan., planned to introduce a bill Tuesday to protect Internet providers from such subpoenas. His proposal, which he called the “Digital Consumer Internet Privacy Protection Act,” would block subpoenas except in pending civil lawsuits or in cases where pirated data files were stored on computers such as Web sites.

Still, a courtroom challenge may be Verizon’s best hope.

Sen. Orrin Hatch, R-Utah, the chairman of the Senate Judiciary Committee, cautioned last week that it was too early to consider changing the 1998 law. He asked lawyers on all sides and consumers to report to his office about their experiences with these subpoenas over the next six months.

“These issues have not ripened enough,” Hatch said during a Senate hearing. “I don’t think we can yet determine if these subpoenas are being used responsibly to identify alleged infringers.”

Hatch cited the continuing appeals court fight between Verizon and the recording industry, along with some related legal skirmishes.

“As we start to hear more voices protesting the impact of these subpoenas, there may be more of a chance to reconsider their impact,” Hatch said.

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