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RIAA Song-Swap Subpoenas Spur Senate Inquiry

The decision by the Recording Industry Association of America (RIAA) to seek out individuals who illegally trade music on peer-to-peer networks sparked a congressional inquiry Thursday.

Sen. Norm Coleman, R-Minn., asked the recording industry trade group to turn over copies of the subpoenas it issued to Internet providers under the controversial Digital Millennium Copyright Act.

Coleman said he feared that the RIAA was being too heavy-handed in its pursuit of Internet music pirates. Coleman chairs the Senate’s permanent subcommittee on investigations.

“The industry seems to have adopted a ‘shotgun’ approach that could potentially cause injury and harm to innocent people who may have simply been victims of circumstance or possessing a lack of knowledge of the rules related to digital sharing of files,” he said.

Coleman asked the RIAA for, among other things, copies of its subpoenas issued to Internet providers and description of its safeguards against targeting innocent people.

While Coleman questioned the RIAA’s tactics, he said “the industry has every right to develop practical remedies for protecting its rights.”

The RIAA has issued about 900 federal subpoenas against computer users suspected of illegally sharing music files on the Internet, with about 75 new subpoenas being approved each day, court officials say. The RIAA said it will comply with Coleman’s request.

“It will confirm that our actions are entirely consistent with the law as enacted by the U.S. Congress and interpreted by the courts,” the RIAA said in a statement. “It will demonstrate that our enforcement program, one part of a multipronged strategy, is an appropriate and measured response to the very serious problem of blatant copyright infringement confronting the entire music community.”

Coleman’s move came a day after SBC Communications Inc.’s Internet division filed a lawsuit challenging the RIAA’s use of the DMCA subpoenas, issued under the DMCA provision that allows copyright holders to obtain the identities of suspected infringers on an expedited basis.

In a complaint filed Wednesday, SBC Internet Services alleges that many of the subpoenas were improperly prepared and filed. The suit also challenges some of the DMCA provisions, claiming that they violate customers’ privacy.

The RIAA won a case against Verizon Inc.’s Internet arm in the District of Columbia federal district court that raised similar issues. Verizon was forced to turn over the identities of subscribers.

SBC spokesman Joe Izbran said the suit in California underscores the difficulty of complying with the DMCA lawsuits as they get flooded with requests under the act. In the Verizon case, the judge did not foresee that hundreds, if not thousands, of DMCA subpoenas would be filed, Izbran said.

“The Verizon case opened the floodgates,” he said. “Not only the RIAA, but other companies have asked for the identities of subscribers.”

The RIAA dismissed SBC’s objections as “procedural gamesmanship,” saying the issues in the case are “old news.”

“Pac Bell is simply recycling many of the same arguments already raised and twice rebutted by a federal court,” the RIAA said. “We had previously reached out to SBC to discuss this matter but had been rebuked. This procedural gambit will not ultimately change the underlying fact that when individuals engage in copyright infringement on the Internet, they are not anonymous and service providers must reveal who they are.”

Attorneys active in this area of law are following the suit closely. Charles Sims of Proskauer Rose said the telco had no case.

“It’s a PR move to make themselves seem more user-friendly to their customers, but the claims don’t have any merit,” he said. “They know about massive amounts of infringement that are taking place, having been alerted, and they are immune from certain lawsuits if they respond to those requests. But the immunity is in return for their cooperation, and they want to have it both ways.”

Sims successfully represented eight movie studios in their suit against the hacker magazine 2600 regarding DMCA violations.

Ira Rothken of Rothken Law Firm, on the other hand, thought the ISP’s action was sensible. “SBC understands that the value of their network goes down if its customers cannot surf the Internet and read and listen to things online with privacy and anonymity,” he said.

The lawsuit “is sending the proper message that it cares about its customers” by insisting that subpoenas under the DMCA’s provisions first “convince a federal judge that such subpoenas have merit and provide such targeted customers with due process.”

Rothken is on the team representing a group of consumers in Newmark v. Turner et al., a suit asserting the right to time- and space-shift television programs using digital video recorders.

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