The recording industry and the nation's largest telephone company are crossing legal swords in what could be a test case of how far big record labels can go to track down computer users who swap music online.
The industry is seeking to force Verizon Communications Corp., which also provides customers with high-speed Internet access, to turn over the name of one of its users who the record labels claim has made copyrighted music available for download by others. The Recording Industry Association of America also demanded that Verizon block access to the user's music files.
The industry contends that it's losing millions of dollars in music sales because potential customers are instead downloading digital copies from others in violation of copyright law. The battle with Verizon is part of an aggressive campaign by the record labels on Capitol Hill, at the Justice Department and in the courts to crack down on the practice.
Among other tactics, the industry is using automated software agents - called "bots," short for "robots" - to patrol the Internet and identify computers with music available for download through a popular technology known as file sharing. Although the bot can detect the presence of music files available for download, it can identify only an Internet address code and the service provider, not the identity of the user.
The music industry sent a subpoena to Verizon for the name of one user but was rebuffed. It then went to U.S. District Court in Washington, asking the court to enforce the subpoena.
Verizon and a coalition of Internet advocacy groups argue that if the recording industry prevails, the constitutional right to privacy of millions of Internet users would be compromised.
"RIAA proposes a dazzlingly broad subpoena power that would allow any person, without filing a complaint, to invoke the coercive power of a federal court to force disclosure of the identity of any user of the Internet, based on a mere assertion ... that the user is engaged in infringing activity," Verizon's legal filing said.
Verizon doesn't defend piracy of copyrighted works, but Sarah Deutsch, Verizon's associate general counsel, said the record industry's seeking a legally "creative" way to require the Internet provider to violate its customer's privacy. She added that because the music files reside on the user's computer, not on Verizon's network, the only way to block access to them would be to terminate the user's Internet account.
Verizon argues that under the terms of the 1998 Digital Millennium Copyright Act, the provider of a user's Internet connection is not responsible for any action taken by that user. Deutsch said the law was passed before file-sharing technology was even contemplated and that the record labels are now trying to retrofit it, in effect, to be applied to file sharing.
The industry takes a broader view of the federal law, arguing that its terms obligate owners of networks to comply with subpoenas in cases of copyright infringement.
RIAA President Cary Sherman said Verizon is trying to have it both ways: The telecommunications company says it isn't responsible for policing file sharing, but it won't provide the information that would allow the record industry to do so.
He added that the demand that Verizon block access to the user's files was only a formality to comply with the terms of the copyright act; the RIAA simply wants to warn the subscriber that he or she is violating the law.
Deutsch said the industry's motives in the case are suspect because Verizon offered a simple alternative: The RIAA could sue the user, naming him or her as an unknown party, and then subpoena Verizon for the user's name. Under that scenario, Deutsch said, Verizon would comply because there would be a valid legal action pending.
But the labels "would like to be able to serve millions of these types of subpoenas and collect subscriber names, and then pick out the most favorable for a lawsuit against the user community," Deutsch said.
In briefs filed Wednesday, the RIAA said that until Verizon's refusal to honor the subpoena, many Internet service providers had given it the identities of individuals accused of copyright violations.
Deutsch said the user hasn't been notified of the dispute because the company's view is that the subpoena is invalid. In other cases, in which potentially illegal material is hosted on Verizon's network, users receive notification and time to take the material off the system before Verizon does so, she said.
Despite mounting efforts by the recording industry - including successfully shutting down the trailblazing Napster service - file sharing continues to boom. According to the Web site of Kazaa, one of the leading providers of file-sharing software, nearly 14 million copies of its product have been downloaded by users, 2.6 million of them in the past month.
File-sharing software can be used for documents, media files or other data, and Kazaa warns its users against violating copyrights. But music swapping abounds.
In response, the music industry is pushing on a number of fronts. At the industry's behest, 19 members of Congress asked the Justice Department to aggressively enforce the law, and the agency has said it will do so.
Pending legislation sponsored by Reps. Howard Berman, D-Calif., and Howard Coble, R-N.C., would allow the industry to hack into offenders' computers to disrupt file sharing, while the industry is also putting out fake music files to try to discourage downloads.
