WASHINGTON, D.C. -- Lawmakers aren't sitting by as the recording industry sues its customers for downloading digital music, but their actions are coming down on both sides of the copyright fight.
The Recording Industry Association of America has filed nearly 300 suits and subpoenaed more than 1700 people on charges of illegal file sharing of copyrighted music since beginning its campaign in September.
"The process will continue as long as need be," says Jonathan Lamy, a RIAA spokesperson. "A wave of lawsuits" will result if fans keep downloading recordings from the Internet for free. Settlements call for both financial payment and a signed agreement to stop illegally sharing copyrighted music.
Reining in the RIAA
But the RIAA's tactics have drawn criticism and action from a few members of Congress who say the music industry is overreaching. In particular, some lawmakers bristle at the RIAA invoking the subpoena powers of the Digital Millennium Copyright Act to require ISPs--notably Verizon--to release information about customers suspected of engaging in unauthorized file sharing.
Most subpoenas require judicial oversight and proof of wrongdoing, but the DMCA enables the RIAA to get subpoenas from court clerks without presenting evidence.
Senator Sam Brownback (R-Kansas) has introduced S. 1621, legislation that limits the subpoena powers of copyright holders like the RIAA. His proposal would require those seeking subpoenas to file a case and appear in court. Supporters say the proposal enforces due process protection and privacy rights for defendants.
"The federal court has twice ruled the subpoenas to be a valid and constitutional tool," says the RIAA's Lamy. "All ISPs must live up to their obligations under the law. The DMCA is a careful compromise. It provides the ISPs liability immunity from piracy; in exchange, they're obligated to help copyright holders identify the individuals committing that piracy."
Consumer advocacy groups support Brownback's bill, but the bill lacks wide congressional support, acknowledges Aaron Groote, the senator's spokesperson.
"The senator is still pushing forward," Groote says. "Hollywood and the recording industry have a powerful lobby, and they've done a good job of convincing people that this is about piracy, not privacy." He adds that Brownback opposes copyright violations, but wants to ensure due process of defendants.
A similar bill is in the works from Representative Rick Boucher (D-Virgina), who has criticized the RIAA's use of the subpoena process as "wholly inappropriate."
"It operates outside the judicial scrutiny, so there's no remedy that an aggrieved party can turn to," Boucher says. He says he is seeking cosponsors for a House bill for next year. "The bill will subject the subpoena-granting process under the DCMA to judicial scrutiny," he says.
Separately, Senator Norm Coleman (R-Minnesota) assembled a large and varied panel of witnesses for a recent hearing on the RIAA's practices. Participants included rappers Chuck D and LL Cool J; Jack Valenti, president of the Motion Picture Association of America; and Lorraine Sullivan, a college student sued by the RIAA.
The senator plans to introduce a bill dealing with the problem and to have more hearings, says Andy Brehm, Coleman's spokesperson. "No one from the technical areas has testified, and [the senator] really wants to hear from them," Brehm says.
Coleman, who chairs the Senate Permanent Subcommittee on Investigations, told the RIAA in an August letter, "I am concerned that the subpoena process established in the DMCA could be subject to abuse."
Other bills accelerate the crackdown on copyright violations. Although opposed by consumer advocacy groups, some have gained traction within Congress.
With 23 cosponsors, the Piracy Deterrence and Education Act of 2003 (H.R. 2517) enlists the FBI and Justice Department to educate the file-sharing public, but also urges them to prosecute more file swappers. It lowers the threshold for prosecution by allowing lawsuits even if the content is not registered with the U.S. Copyright Office. Also, the FBI could issue warnings to those parties who distribute or download copyrighted content without permission. Warnings could be by e-mail or instant messages, says Alec French, spokesperson for sponsor Howard Berman (D-California).
"This bill gives copyright owners all of the cards," says Marv Johnson, legislative counsel with the American Civil Liberties Union. The ACLU questions the logic of dedicating intelligence resources to this issue when the country needs them for antiterrorist measures.
French says the bill is not stacked against the average person.
"It's easy to demonize the RIAA and put a corporate face on this, but copyright infringers do tremendous harm to individuals too," French says. He cites two people--a photographer and a needlepoint designer--who testified at a July hearing that their works are being ripped off and they cannot afford to bring civil suits as recourse.
French also says the Justice Department and the FBI are already involved in hundreds of educational programs.
The bill is expected to be combined with parts of another antipiracy measure, the Author, Consumer, and Computer Owner Protection and Security Act of 2003. One key provision of ACCOPS criminalizes camcording of films in movie theaters.
Some observers are pessimistic about the piracy deterrence bill's chances of passage before year's end, since the Senate is preoccupied with funding government operations for the current fiscal year.
A Voice for the Consumer
Boucher is among lawmakers who say Congress should do more to help consumers in this matter.
"There's a growing awareness in Congress that the existing law has overreached, and some consumers are being unfairly prosecuted in some cases," he says, referring to a suit the RIAA withdrew, which involved a 66-year-old grandmother who never engaged in file swapping.
In January, Boucher introduced the Digital Media Consumers' Rights Act (H.R. 107), aimed at protecting consumers' fair-use rights in response to music labels' increasing reliance on copy protection. His bill would ensure consumers' rights and ability to make a backup or a custom CD of music they had purchased.
"The new copyright protection will make fair use impossible," Boucher says. "The purpose of my bill is to let people exercise their fair-use rights."
The House Committee on Energy and Commerce may consider the bill next year. "This is a major change," Boucher adds. "It's going to take some time."
Since legislative relief does not appear imminent, users can take some measures to minimize risk, says Wendy Seltzer, staff attorney of the online civil liberties group Electronic Frontier Foundation.
To be safe, users should stop downloading and sharing files and remove any copyright-infringing files from a PC's shared folder, Seltzer says. She notes that the RIAA's targets seem to be people who let their computers be "supernodes" on the FastTrack P2P System operated by Kazaa and Morpheus. To avoid the RIAA, don't let your computer be used as a supernode, she says.
The EFF also hosts an online database of more than 1500 subpoenaed user names or IP addresses, which the group obtains from court records. Some defendants have gone online with a plea for their defense, such as the Web site created by defendant Sullivan.