Court’s Leanings Undetectable in Music Piracy Case

A federal appeals panel offered few hints Tuesday on whether it would permit the music industry to continue using special copyright subpoenas to track and sue computer users who download songs over the Internet.

The three-judge panel from the U.S. Court of Appeals for the District of Columbia tossed tough questions at lawyers for all sides. Judges plainly wrestled with esoteric provisions of the disputed 1998 law that permits music firms and others to force Internet providers to turn over the names of suspected pirates.

The decision, expected this fall, could have important consequences for the music industry’s unprecedented campaign to discourage piracy through the threat of expensive civil penalties or settlements.

The Recording Industry Assn. of America, the trade group for the largest labels, has issued at least 1,500 subpoenas this summer. It has filed civil lawsuits against 261 people it accused of illegally distributing music online and promised thousands more lawsuits.

Verizon Communications Inc. is challenging the constitutionality of the subpoenas under the 1998 Digital Millennium Copyright Act. U.S. District Judge John D. Bates earlier had approved use of the subpoenas, forcing Verizon to turn over names and addresses of at least four Internet subscribers; since then Verizon has identified dozens of other subscribers to music industry lawyers.

But if the appeals court was leaning in one direction by the end of Tuesday’s hearing, it was undetectable. One judge, John Roberts, suggested that a “logical extension” of the 1998 law wouldn’t permit such subpoenas in the music lawsuits; he then accused Verizon of profiting from the online piracy of subscribers.

“You make a lot of money off piracy,” Roberts told Verizon lawyer Andrew McBride. People who download large collections of music traditionally favor high-speed Internet connections such as those offered by Verizon’s Internet subsidiary.

“That is a canard,” McBride shot back. He said Verizon makes money when computer users buy songs from online services affiliated with Verizon.

Roberts, a new appointee of President Bush, also challenged RIAA lawyer Donald B. Verrilli Jr. about whether computer users downloading music were any different from people who maintain libraries in their homes.

The 1998 law, passed years before downloading music over peer-to-peer Internet services became popular, compels Internet providers to turn over the names of suspected pirates upon subpoena from any U.S. District Court clerk’s office.

The appeals court must decide whether Bates correctly ruled against Verizon this year.