June 23, 2017

RIAA Subpoena Decision, and Fallout

There’s been lots of talk about the DC Circuit court’s ruling that the RIAA cannot compel ISPs to identify customers who the RIAA suspects of infringing copyrights. The court ruled on narrow grounds, saying that Congress, in the text of the DMCA, did not authorize the type of subpoena that the RIAA wants to use.

This is good news, but it is not as big a deal as some people think. The subpoena provision in question was hardly the greatest injustice in the world. Yes, it was open to abuse by various bad actors; and yes, not everybody identified to the RIAA turned out to be an infringer. If I were king, I would not allow RIAA-style subpoenas without judicial approval. But unless you shed tears for the actual infringers whose names were revealed to the RIAA – which I don’t – this is not the huge privacy boon that some have suggested.

What happens next? One of two things. The RIAA may ask Congress to change the law, to allow the subpoenas in question. My guess is that Congress would give them what they want, perhaps with a few new safeguards to prevent the most egregious abuse scenarios. Alternatively, the RIAA may cut a deal with the major ISPs, in which the RIAA agrees not to ask Congress to change the law, and the ISPs agree in exchange to forward RIAA warning messages to customers who the RIAA identifies as probable infringers.

In the meantime, the RIAA says they intend to file John Doe lawsuits, in which they sue first and then use a traditional subpoena to identify the defendant.

Comments

  1. John Doe subpoenas seem to have a down-side too. The litagant goes in blind. It’s likely that given enough time some very nasty surprises are likely to emerge that turn into public relations nightmares that could possibly prove expensive. It also seems to me that fewer face-saving options would be availabe to the offending litigant with the offended in a better position to retaliate against the offender.

    If so, the RIAA faces somewhat grater risk as a result of this decision. Of course the RIAA may not be concerned about bad PR viewing the matter as an economic decision and thus merely the cost of doing buisness.

    I wish folks would just let the record and publishing companies pass on into history. Technology has evolved to the point where they’re no longer needed to act as intermediaries between author and consumer and really are now a growing hinderance to progress. Authors have the ability to produce great redistribution proof works that with a PayPal account enable them to collect 80-90% of the revenue stream.

  2. I think the privacy problems are pretty serious. One example from the amicus brief are women who are victims of domestic violence and post anonymously to certain groups. If their identity can be revealed without any oversight, they can be in great physical danger!

    Surely you understand anonymity is important — allowing anyone to find the holder of an IP address without any oversight is a great danger.

  3. I think the issue of “anonymous” surfing and posting on the web is analogous to making an anonymous phone call. Law enforcement can still get a warrant for phone records, can tap phones, and can figure out where a call is coming from with some trouble, but there is oversight involved.

    I don’t think anyone would quibble with our right to make the occasional anonymous call. I don’t like giving my information to some companies because I don’t trust them much (they’ll sell the info, use it to call me back etc. and it’s annoying), but I want to be able to call to ask questions without completely identifying myself, etc. We all do this some and everyone accepts it.

    So why can’t we form this sort of standard with internet use? Why can’t people surf and post “anonymously” and then if needed, one’s identifying information can be obtained with warrants and subpoenas with judicial oversight? Granted, posters who don’t say who they are may be less credible unless they explain why they don’t want to say who they are, but that can be worked out case by case and is up to readers of posts to believe what they read, or not, and really isn’t nearly as important to me as the reasons we would want to keep anonymous surfing and posting available for people.

  4. “The RIAA may ask Congress to change the law, to allow the subpoenas in question. My guess is that Congress would give them what they want, perhaps with a few new safeguards to prevent the most egregious abuse scenarios.”

    – I don’t think so. The ISPs would lobby against any RIAA efforts to overturn this case, and the ISPs are every bit as powerful a voice in the Capitol as the RIAA.

    – Dealing with the ‘egregious abuse scenarios’ might satisfy the groups like the ACLU/EFF and other pro-privacy organizations, but that is unlikely. The whole point of expedited 512 subpoenas is to speed up the process by cutting out safeguards. If you add the safeguards back in, the subpoenas wouldn’t be expedited any longer!

    “Alternatively, the RIAA may cut a deal with the major ISPs, in which the RIAA agrees not to ask Congress to change the law, and the ISPs agree in exchange to forward RIAA warning messages to customers who the RIAA identifies as probable infringers.”

    – This is what is already being done, otherwise known as: the status quo. ISPs already forward warnings, so there is no room for ‘deal-cutting’ on that point. At any rate, the RIAA knows that warning messages are useless if the idle threat isn’t backed up with a genuine legal threat or termination of service. If I received any such warning, I would throw it away and ignore it.

    So let’s talk about the REAL impact of this case:

    #1. The RIAA can not discriminate between potential infringers. This results in:

    (A) Numerous suits against judgement-proof (poor)defendants, which ultimately accomplish little beyond the waste of RIAA resources (money).

    (B) Inevitable suits against sympathetic defendants. It will be difficult to demonize file-sharing when some of society’s most beloved personalities wind up being sued by the RIAA. Before, the 512 subpoena allowed the RIAA to find out that a target infringer was really a crippled child in a poor family, then the RIAA could decide not to sue. Now, the RIAA finds out that info AFTER the lawsuit is filed, and news organizations can jump all over it before the RIAA has time to settle. Anyone who can remember the ill-advised ASCAP suit against the girl scouts will understand the significance of the RIAA being able to avoid unsympathetic infringers.

    #2. Filing lawsuits ‘shotgun style’ is more expensive, and the cost-versus-benefit balance shifts against the RIAA’s lawsuit offensive. Not only will it take more money to sue and identify alleged infringers, but the PR risk threatens to unravel substantial RIAA investments in their ‘education’ campaigns.

  5. “I wish folks would just let the record and publishing companies pass on into history. Technology has evolved to the point where they’re no longer needed to act as intermediaries between author and consumer and really are now a growing hinderance to progress….”

    Can we say…paradigm shift?