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List:       dmca-discuss
Subject:    [DMCA_Discuss] SBC Stands Firm Against RIAA
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2003-09-17 2:12:37
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(Forwarded from Pho list; originally from NY Times)

-------- Original Message --------
Subject: pho: NYT: SBC Stands fast
 Date: Tue, 16 Sep 2003 00:09:48 EDT
 From: Virtualaw@aol.com
  To: pho@onehouse.com


> http://www.nytimes.com/2003/09/16/business/media/16SWAP.html


September 16, 2003

SBC Won't Name Names in File-Sharing Cases

By SETH SCHIESEL


As the recording industry pursues its lawsuits against those it says are
digital music pirates, SBC Communications has emerged as the only major
Internet service provider that has so far refused to identify computer users
whom the industry suspects of copyright infringement.

Since early July, major high-speed Internet providers — including
BellSouth, Comcast, EarthLink, Time Warner Cable and Verizon — have
complied with more than 1,000 subpoenas from the record industry's lobbying
arm, the Recording Industry Association of America, to turn over the names
of their customers who are otherwise known only by the murky screen names
and numeric Internet Protocol addresses used in cyberspace.

SBC, the No. 2 regional phone company and a major local telecommunications
service provider in the Midwest and West, has received about 300 such
subpoenas and has refused to answer any of them. It has stuck to that
position even though Verizon, the biggest local phone company — which has
most of its customers along the East Coast — lost a major lawsuit this
year against the recording industry.

The contrast between SBC's stance and that of its peers illustrates how
Internet providers have been caught in the middle of the music industry's
pursuit of individual music swappers. Their range of responses underscores
the complexities of the legal landscape in this new area of law, the
mounting tensions between copyright enforcement and privacy, and the limits
of technology in finding cyberspace pirates.

In the Verizon case, a federal judge in Washington ruled that the Digital
Millennium Copyright Act of 1998 required the company to reveal the
identities of its customers even though the industry's subpoenas had not
been individually reviewed by a judge. Oral arguments in Verizon's appeal
are to be heard today by a federal court in Washington.

Most big Internet providers say that the original decision in the Verizon
case essentially validated the subpoenas that the recording industry sent to
other companies. SBC, however, has sued the recording industry group in
California.

"We are going to challenge every single one of these that they file until we
are told that our position is wrong as a matter of law," James D. Ellis,
general counsel for SBC, said yesterday in a telephone interview.

Ever since the Telecommunications Act of 1996 remade the communications
industry, SBC has been considered by far the most legally aggressive of the
nation's major communications companies. Mr. Ellis is scheduled to testify
tomorrow about the copyright subpoenas before the Senate Commerce Committee.
With about three million high-speed data customers, SBC is the nation's No.
1 provider of broadband Internet access using digital subscriber line
technology.

"Clearly, there are serious legal issues here, but there are also these
public policy privacy issues," Mr. Ellis said. "We have unlisted numbers in
this industry, and we've got a long heritage in which we have always taken a
harsh and hard rule on protecting the privacy of our customers'
information."

Recording industry officials see SBC's stance not as a matter of principle
over privacy but as a matter of dollars from downloading. They assert that
SBC is not concerned about copyright protection because the company uses the
lure of music piracy to attract high-speed Internet customers.

A record industry official pointed to a past print advertisement from SBC's
Pacific Bell unit that read, in part: "Download all the music you like. And
all the music you sort of, kind of, maybe even a little bit like. Go MP3
crazy. Try new music. Build a song library. Whatever."

"Sure beats going to the record store," the advertisement concluded.

A spokesman for the record industry group said the ad had appeared in The
Los Angeles Times as recently as January 2002.

Matthew J. Oppenheim, the trade group's senior vice president for business
and legal affairs, said the ad was important because it suggested a strong
motive for SBC's position. "SBC believes that free music drives its
business," he said. "That's the only explanation for why they would
relitigate issues that have been resolved."

An SBC spokesman, Selim Bingol, said the advertisement was irrelevant. "It's
ludicrous to suggest that an ad that has not appeared for many months has
anything to do with today's debate," he said. "We are opposing these
subpoenas because under the R.I.A.A.'s interpretation, they are a threat to
consumer privacy and safety."

The wave of subpoenas that led to last week's lawsuits began about 10 weeks
after the judge in the Verizon case issued his final ruling in April. On
July 7, the Monday after the Independence Day weekend, lawyers at Internet
providers returned to their offices to find a blizzard of legal requests
from the recording association. Comcast, the nation's leading provider of
high-speed Internet access to homes, which it supplies through its cable
system, received more than 100 subpoenas in the first two days after the
holiday.

"It really was a fire drill," said Gerard J. Lewis, Comcast's chief privacy
officer. At Comcast and other companies, the first subpoenas were dated July
3, the last day before the holiday weekend, and they required the companies
to provide the information within seven days. That meant that Internet
providers that thought the subpoenas were legal had only two or three days
to comply.

Now, according to lawyers at several major Internet companies, the recording
industry has agreed to a looser schedule: 10 business days from when the
Internet provider receives the subpoena.

The digital copyright law does not require anyone to notify consumers that
their personal information has been subpoenaed. It appears, however, that
most major Internet providers — including Comcast, Time Warner Cable and
Verizon — made an effort to send letters to many customers who were the
subjects of subpoenas, notifying them that unless the customer signaled
legal action, the information would be provided to the recording industry.

According to executives at several major Internet providers, only the barest
minimum of customers took any steps to block the disclosure of their
information. Of the 261 individuals sued by the industry so far, however, a
number have said they never received any notice from their Internet
provider.

Tracking down the numeric Internet protocol, or I.P., address employed by
any given user of a file-sharing network is relatively easy. In essence, the
industry focused on users who appeared to be making large numbers of music
files available to others on file-swapping networks like KaZaA and Morpheus.
Industry investigators noted the I.P. address of the user and the exact time
at which the user was making files available.

The recording investigators could then determine which Internet provider
assigned the specific I.P. address. The subpoenas included both the I.P.
address and the time so that the Internet provider could see which of its
customers was using that address at that particular moment. With many
consumer Internet services, the I.P. address for a user can change every
time the computer is turned off and turned back on, so the exact time is a
critical tool for matching I.P. addresses and users.

The length of time that Internet providers maintain logs of users, addresses
and times varies. Comcast and Time Warner Cable, for instance, generally
keep those logs for only 30 days. That means that if those companies receive
a copyright subpoena with an I.P. address and time more than a month old,
they may be unable to answer the request. 

Verizon, by contrast, generally keeps its I.P. logs indefinitely.

"Verizon keeps that sort of information for traffic management and to help
law enforcement," said Sarah Deutsch, a Verizon vice president and associate
general counsel. 

Mr. Oppenheim from the recording industry association said he was generally
pleased with the level of cooperation his organization has received.
Nonetheless, executives at several Internet providers that are cooperating
with the association expressed privately some discomfort with the process.

"We fully understand that copyright protection is a legitimate goal," said
one executive at a major Internet provider. "That being said, it doesn't
seem like the consumers' privacy interest is really being balanced out here
in this process."

-- 

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

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