A message to the student body: if you share music on the Internet, be warned. One of the most influential trade groups in the country, the Recording Industry Association of America recently claimed that they intend to file lawsuits against some of the 50 million Americans who share music on the Internet. And many of the first 261 lawsuits filed last week were against college students.
While most students believe their Internet identity is hidden in the vast web of computer connections that produce the peer-to-peer network used by Kazaa and Morpheus, in actuality a small section of the Digital Millennium Copyright Act has allowed the RIAA to acquire the names, addresses and browsing habits of thousands of internet users and use this information to file the recent lawsuits. Section 512(h) of the DMCA gives the owners of a copyright or \a person authorized to act on the owner's behalf,"" like the RIAA, the legal authority to ask the ""clerk of any United States district court"" to issue a subpoena and force Internet Service Providers to disclose ""the information required by the subpoena."" Clearly, in the few lines that make up Section 512(h) the privacy and security of Internet users has been placed in serious jeopardy.
In fact, many who analyze the DMCA including the law clinics at Harvard and the University of California-Berkeley, known as the Chilling Effect project, believe that the protection of anonymous speech granted by the First Amendment may have been undermined by the DMCA. Chilling Effect references one of the most important case precedents for freedom of anonymous speech, McIntyre v. Ohio Elections Commission, in which the Supreme Court affirmed, ""in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."" Copyright infringement by music sharing is a misuse of speech the Court may have had in mind, but if we believe the greater weight is owed to free speech, then not even the subpoenas of section 512(h) can outweigh our right to privacy.
For this reason, as well as for others, Verizon Communications and SBC Communications have stepped forward as the only two ISPs in the nation to refuse to respond to RIAA subpoenas. By protecting their customer's privacy, they have placed themselves in the way of a legal stampede. SBC stated in The New York Times that the subpoenas are a ""public policy privacy issues,"" and that SBC has ""a long heritage in which [they] have always taken a harsh and hard rule on protecting the privacy of [their] customer's information.""
Verizon Communications already lost a court battle against the RIAA over the summer for refusing to release the identity of one of their customers, but has appealed that case on the grounds that the RIAA subpoenas could overwhelm telecommunication companies with thousands of requests for user identity. Furthermore, Verizon questions the legality of the DMCA because it does not require a judge to issue a subpoena for user information. This, it argues, violates free speech and anonymous speech, and attempts to ""end-run around these constitutional protections."" A precedent against Verizon could lead to legal conditions that allow anyone to request the identity and activity of any other Internet user, without court oversight.
But not only are the RIAA subpoenas potentially unconstitutional, the lawsuits resulting from them are by evidence malicious. Because music sharing is widespread throughout the American population, RIAA lawsuits appear to be firing at random into the public. Lawsuits already have been filed against minors. A 12-year-old girl recently settled her lawsuit with the RIAA for $2,000. They have attacked the elderly-a 71-year-old grandfather is being sued because his grandchildren downloaded music on his home computer.
As the public, we have a right to be free of extraordinary prosecutorial burden, and as private citizens we have a right to privacy. We should applaud the efforts of Verizon and SBC for fighting the good fight in a legal quagmire, and groups such as Chilling Effect for monitoring Internet rights. And while no one should doubt that sharing music on the Internet is a form of copyright infringement, neither should we be mistaken that the invocation of the DMCA by the RIAA is itself unconstitutional and malicious.
We have only heard the opening salvos in this litigative war. The loss of anonymity on the Internet, the prosecution of minors and the elderly and the loss of judicial oversight are all forms of an attack on our society. The law as it stands is not sufficiently clear, nor perhaps even applicable, to the changing technologies of the Internet. It is time for Congress to step forward and offer the courts a direction. The congress must retool the DMCA keeping in mind both the interests of copyright holders, but even more importantly, the 50 million music sharers now under litigative seige.
