The RIAA, rejuvenated by the recent demise of Napster and Madster (formerly known as Aimster), has set its sights on new prey in its legal onslaught in defense of the record business.

by Patricia Fusco ISP-Planet Managing Editor [Sept. 11, 2002]

Despite its recent success, the Recording Industry Association of America (RIAA), is still facing a tenacious battle when it comes to thwarting peer-to-peer (P2P) file-sharing systems.

Ultimately, to win its war against P2P music-swapping applications, the RIAA has to resort to prosecuting individual violators of the 1998 Digital Millennium Copyright Act (DMCA).

In order to figure out whom to prosecute, the RIAA must gain access to sensitive information from Internet service providers—personal information, including the name and address of the suspect as well as the IP address that initiated the file transfer.

The case is designed to put to the test the role that ISPs play in supporting illegal activities on the Net. But P2P technology refers to any relationship in which multiple, autonomous devices interact with each other. It enables the rightful sharing of computer resources and services, including information, files, processing cycles, and storage by direct exchange between systems without the use of central servers—as well as illegal music-swapping systems.

There are essentially three different styles of P2P file sharing:

• One-to-one file sharing that transfers files from PC to PC.
• One-to-many file sharing—like mail servers and Web servers, as well as Napster—that enable a single host to share files with multiple users.
• Many-to-many automated file sharing among multiple users, like that employed by Gnutella, BearShare, LimeWire, Gnucleus, and Morpheus. These systems use a distributed model where there is no central server—each node acts as both a client and a server.

Nestled in between these three systems lies a hybrid method for file sharing utilized by FastTrack, KaZaA, Grokster, and Groove. Acting as a controlled, but decentralized framework, certain nodes in the network are elected to act as traffic cops for other nodes.

In its test case, the RIAA is going after what it believe to be a major KaZaA operator and it just so happens that the ISP in question is a powerful incumbent carrier—typically the foe of independent ISPs. But Verizon has refused to obey the court order and reveal the name and contact information of the subscriber, because it merely acted as a "passive transmitter" for material sent over the Internet.

For its part, Verizon has made no change in the service provided to the user whose URL is cited in the RIAA subpoena. Eric Rabe, Verizon vice president of media relations, said its position is that the subpoena is too broad and not covered by the controlling law, the DMCA.

"We're not opposed to copyright protection for owners of intellectual property. Indeed we thought with the DMCA we had a working solution providing that protection," Rabe said. "But we also feel strongly that the privacy rights of our subscribers must be protected."

The RIAA subpoena, Verizon has argued, opens a new area of law and so it has opposed the action and asked for a court hearing. No hearing has yet been scheduled, to date.

Independent ISPs and industry groups have rallied round the former Baby Bell. The U.S. Internet Industry Association (USIIA), in concert with the Communications and Computer Industry Association (CCIA) and the Center for Democracy and Technology (CDT), this week filed an amicus curiae brief in the case of RIAA v. Verizon.

Similar to the brief filed in support of Verizon last week by consumer groups, the USIIA is acting as a "friend of the court." USIIA President Dave McClure warns the ISP community, that the stakes in the RIAA test care are high.

"If the court battle is lost, you may expect to see lawsuits launched against ISPs large and small across the nation and around the globe," McClure said.

McClure said that in keeping with DMCA guidelines, the only way that ISPs could comply with such a subpoena is to "remove or disable access." In other words, ISPs would have to terminate client services in order to comply with the law. Since millions of files are being downloaded worldwide, terminating client services would impose a substantial cost burden on ISPs—particularly national ISPs serving a large number of clients.

Unlike the amicus brief filed in support of Verizon last week by consumer groups, the USIIA brief responds to technical inaccuracies in the RIAA case and warns of the severe consequences the RIAA position could have on ISPs.

Specifically, The USIIA challenges the RIAA's declaration that it cannot determine whether the infringing material is stored on the ISP's network, or not. In a statement, McClure said he has personally reviewed the client software for leading P2P systems such as KaZaA, BearShare, and other popular services.

"Consistent with my understanding of the a way peer-to-peer service operates, all of these client software programs permit a user to share files (i.e., download and upload) only on a local drive from the users home computer or on a file on a physically mapped network," McClure said. "Accordingly, the allegedly infringing material could be stored only on the user's own PC or network, not on Verizon's network or any other storage facility offered by an ISP."

ISPs have long fought not to be their subscribers' keepers. That is, ISPs are not designed to police the online activities of their own subscribers—ISPs are designed to provide transport. Whether or not the RIAA accepts Verizon's challenge to the legal interpretation of the DMCA remains to be seen.

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