The Privacy Lawyer: The Magical World Of Music Online

Now we know the music industry is going after teenagers. But employers need to be prepared, too, in case a subpoena arrives from the RIAA.
Verizon was the first to formally object to RIAA's attempts to use the law to obtain the contact information for individual subscribers of its online service. Since the infringed content is stored on the individual's computer when P2P is used, and not on the service provider's networks, Verizon argued that it wasn't required to turn over any information. It argued that the DMCA made it clear that ISPs weren't responsible for copyright infringements being run through their networks (conduit transmissions), as long as they didn't reside and weren't stored on their networks. The trial court, in its ruling on a motion brought by Verizon to suppress the subpoena, disagreed with Verizon and held that whether or not the content is stored on the network, the contact information must be provided.

That decision is up on appeal and should be decided shortly. The same case is being litigated around the country by other ISPs with differing levels of success, which will also probably be appealed.

While many have been unhappy with the RIAA's enforcement activities, few can disagree that those being charged with file sharing copyrighted content have uniformly broken the law. So, our happiness or unhappiness with their tactics makes no difference. Sharing music online is infringement and shouldn't be allowed. And the lawsuits targeting children may turn out to be a very effective strategy by getting the attention of parents and kids alike, as much as we decry them.

Subpoena Power
Interestingly enough, it's the use (or abuse) of Section 512(h) and what is now called the "512(h) subpoena" that has created the greatest controversy among the lawyers specializing in this area of law. It provides an extraordinary power to anyone claiming to be a copyright holder or someone acting on their behalf, without the checks and balances of due process or judicial oversight. That means 512(h) can be easily abused by someone posing as a copyright owner just to find out who is behind an IP address. Whether this was thought through at the time it was adopted, or merely became a problem when P2P was designed (following the DMCA's adoption) is unclear. That will be decided by the courts.

In the meantime, the 512(h) subpoena may affect you, your employer or company directly. It applies to a far broader group than most people and corporations realize. Even though the law speaks in terms of "service providers," that term isn't limited to official ISPs. It applies to most entities that provide access to the Internet for others, such as those providing Internet access and E-mail to employees. It probably applies to your company or employer.

Just as with the large ISPs, for any service provider to escape vicarious liability for copyright infringements that occur using their network, they must comply with 512(h) subpoena requests by providing contact information for the person behind the applicable IP address.

That means if you file shared that song from your work equipment and the RIAA was watching, your employer or your company may have to turn over your name, address, and telephone number. If they don't, they face possible liability for the actions of their employees or authorized users for sharing music or other copyrighted media stored on their networks.

And until a judge in your jurisdiction decides otherwise, everyone should assume that the 512(h) subpoena is valid and can apply to any service provider. Even you.

Parry Aftab is a cyberspace lawyer, specializing in online privacy and security law. She also devotes a large portion of her time to online safety and policy matters. She is the executive director of, the world's largest online safety and help group. She can be reached at [email protected].

To discuss this column with other readers, please visit the Talk Shop.

To find out more about Parry Aftab, please visit her page on the Listening Post.

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