The recording industry can’t force school systems, universities, or internet service providers (ISPs) to hand over the names of music downloaders, a federal appeals court said Dec. 19 in a major decision shielding online privacy while undercutting the industry’s anti-piracy campaign.

The ruling does not legalize the distribution of copyrighted songs over the internet, but it will greatly increase the cost and effort for the Washington, D.C.-based Recording Industry Association of America (RIAA) to track such activity and sue those who are swapping music online.

The RIAA began filing copyright subpoenas with universities and ISPs earlier this year, asking for the identities of students and other internet users suspected of illegally downloading and sharing music files online. The subpoenas have led to nearly 400 civil lawsuits against alleged file-swappers so far.

But the U.S. Court of Appeals for the District of Columbia on Dec. 19 overturned a trial judge’s decision to enforce the subpoenas, saying the 1998 Digital Millennium Copyright Act doesn’t cover popular file-sharing networks used by tens of millions of Americans to download songs. The law “betrays no awareness whatsoever that internet users might be able directly to exchange files containing copyrighted works,” the court wrote.

The judges sympathized with the recording industry, which has cited declining profits, noting that “stakes are large.” But they said it was not the role of courts to rewrite the 1998 law, “no matter how damaging” the practice of swapping has become to the music industry or threatens to become to the motion picture and software industries.

At colleges and universities, where the use of peer-to-peer file-sharing networks is a growing problem, the practice of swapping copyright-protected files online has put administrators in the difficult position of trying to balance students’ privacy rights with the need to enforce the law.

At least two schools–Boston College and the Massachusetts Institute of Technology–tried to challenge subpoenas from the recording industry in court. Reaction of administrators at these and other schools to the Dec. 19 ruling was not immediately available.

The chairman of the Senate Judiciary Committee, Orrin Hatch, R-Utah, said the court’s decision “makes the need for reform of the subpoena process even more urgent.”

Sen. Norm Coleman, a prominent critic of the subpoenas, predicted that any efforts to broaden the 1998 law would “face some serious obstacles” in the Senate.

“We clearly have to do a better job of getting law and technology and ethics into better sync,” said Coleman, R-Minn.

Legal experts said they did not expect the appeals ruling to affect 382 civil lawsuits the recording industry has filed since it announced its campaign six months ago. It also was not expected to affect financial settlements with at least 220 computer users who agreed to pay penalties from $2,500 to $7,500 each.

But the ruling will make identifying defendants for future lawsuits more difficult and expensive, experts said. The ruling forces the recording industry to file civil lawsuits against “John Doe” defendants, based on their internet addresses, then work through the courts to learn their names.

Cary Sherman, president of the recording industry group, said the ruling “unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation.”

Sherman promised to “continue to defend our rights online on behalf of artists, songwriters, and countless others involved in bringing music to the public.”

Earlier in the week, the recording industry sent letters to the 50 largest U.S. internet providers asking them to forward written warnings in the future to subscribers caught swapping music.

Details were still being worked out, but if internet providers agree, subscribers who swap even modest collections of music online could receive the ominous warnings.

The letters demanding an end to the practice would be forwarded without revealing subscriber identities to music lawyers. The warnings would be mailed directly to internet account holders–potentially alerting parents or grandparents about illegal downloading in their households they might not know about.

U.S. District Judge John D. Bates had approved use of the disputed subpoenas, forcing Verizon Communications Inc. to turn over names and addresses for at least four subscribers. Since then, Verizon has identified scores of its other subscribers under subpoena by the music industry, and some of them have been sued.

Verizon appealed, and company lawyer Sarah Deutsch called the Dec. 19 ruling “an important victory for all internet users and all consumers.”

“Consumers’ rights cannot be trampled upon in the quest to enforce your copyright,” Deutsch said.


Recording Industry Association of America