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Groklaw Interview with Sarah Deutsch, Esq. on RIAA v. Verizon
Thursday, October 28 2004 @ 07:11 PM EDT

As soon as I heard about the Supreme Court decision in RIAA v. Verizon, Inc., I asked Sarah Deutsch, vice president and associate general counsel for Verizon and their lead attorney on the case, if she would be willing to be interviewed by Groklaw, because I knew you would be interested in learning more about this important case and Verizon's victory. In case you didn't read about it, here's a bit from Wired's coverage:

"The Supreme Court on Tuesday let stand a lower court decision holding that the recording industry can't force internet service providers to turn over the names of users trading music files online, effectively stopping one of the legal tactics of the music business as it tries to stamp out piracy. . . .

"Verizon hailed the court's action Tuesday as a victory for personal privacy, free-expression rights and 'safety' for internet users across the United States.

"'This decision means copyright holders and their representatives -- or identity thieves and stalkers posing as copyright holders -- will not be allowed to obtain personal information about internet users by simply filing a one-page form with a court clerk,' said Sarah Deutsch, vice president and associate general counsel for Verizon."

Ms. Deutsch graciously agreed to be interviewed.

For background, you can find all of the court filings on EFF's page on the case and Groklaw's earlier coverage of the Court of Appeals victory, and media coverage here on Infoworld. There was a ruling in Pennsylvania just today that likely will interest you as well, on EFF's home page, that they describe as "requiring, before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed."

The Lexmark case is mentioned, and I'll have it for you shortly, as well. All of this background will help you to understand what was involved in the RIAA v. Verizon case, and how extraordinary it was for the company to be willing to take this case all the way as a matter of principle.


Groklaw: What were the issues that caused you to decide to fight this case all the way to the Supreme Court? (And may I say personally that I thank you and Verizon very much for having made the process much fairer?)

Sarah Deutsch: I am very proud of the stance Verizon took in this case and the company's resolve to fight this case all the way to Supreme Court. We understood early on that the Recording Industry's push for a new form subpoena process was unprecedented. By paying a $35 filing fee and filing a simple one page form with any clerk at the district court house, RIAA would open the door for anyone who made a mere allegation of copyright infringement to gain complete access to Internet users' private subscriber information without the due process protections afforded by the courts. The case raised serious privacy, due process and safety issues for all Internet users. Although Verizon does not condone copyright piracy, in our view, the case was really about protecting the privacy of the vast majority of consumers who have not engaged in illegal activity. As a company who negotiated the DMCA Section 512 provisions back in 1998 with the content community, including RIAA, it was also clear that RIAA was distorting the law we had negotiated, which clearly distinguished between the service provider acting as a host of third party content and the service provider acting as a mere conduit for communications.

Groklaw: The case has implications for Verizon and for users. Please feel free to comment on both, but if you can you please address the latter particularly, that would be helpful. What were the dangers had you just capitulated? And what benefits do you see from this win? Obviously, the privacy benefits to all of us are clear as individuals. But do you see any implications from the standpoint of ISPs?

And with respect to clerk-issued subpoenas opening the door for abuse by not only the RIAA, but potentially by pedophiles, stalkers and the like, can you see other ways that such a system could be misused? Can you please address the First Amendment issue and anonymous speech here?

Deutsch: This case involved considerable dangers for privacy, safety and First Amendment and anonymous speech because the form subpoena could have been used not only to find out subscriber information for P2P file sharing, but for any website you visited, chatroom you participated in or even an email you sent. Many people do not realize that your IP address is visible everywhere you go on the Internet when you send an email, visit a website, or chat room, these numbers are visible. The service provider holds the key to link this IP number with a name, address or phone number. The one-page form subpoena would have been an unprecedented new tool to reveal the identity behind an IP address and frighteningly, to associate it with the particular content a user sends or receives over the Internet. From the ISP perspective, the concern is that it would have turned the ISP into Big Brother -- automatically handing over millions of names without any protections from a judge or the judicial process.

From the consumer perpective, the dangers were many. The 512(h) form subpoena power could be used not only by large copyright owners of federally registered copyrights but by anyone claiming to own a copyright. Because copyright protection automatically applies to any form of "tangible expression" (writings, drawings, computer code, scribbles) virtually anyone can claim to be a valid copyright owner. The 512(h) subpoena power has been used and abused by parties far less responsible than the recording industry, without any of the normal checks and protections that apply to John Doe lawsuits filed under the supervision of a judge. Over 92 separate groups, including consumer groups and privacy and safety groups like the National Coalition Against Domestic Violence and WiredSafety filed briefs against RIAA raising concerns about this unsupervised process. Anyone could have gained access to your identity from spammers, blackmailers, pornographers, pedophiles, stalkers, harassers, and identity thieves. It unravels all the state and federal privacy laws to date that have so carefully been enacted to protect consumers from abuse.

RIAA's misuse of this form subpoena process resulted in significant privacy abuses throughout the country. Last year, SBC Communications sought a court order in California to protect itself from turning over customer names under this false subpoena power to an entity called Titan Media Group. Titan Media, a purveyor of pornographic videos over the Internet, sent one form copyright subpoena to SBC seeking the names, addresses and phone numbers of 59 individual subscribers whom Titan asserted were infringing its "copyrights" in pornographic videos by exchanging them over the Internet. Titan Media, imitating a so-called amnesty program offered by RIAA, announced its own "amnesty program." They told Internet users that they must reveal their identity to Titan and agree to purchase a copy of their pornographic material or Titan threatened to use the form subpoena process to expose their identity. Luckily, this case was dismissed when Verizon won its case at the DC Court of Appeals.

In addition, there is generally a further chilling of expression from the outsourcing of copyright enforcement actions to copyright "bounty hunters" -- enterprises that search the Internet for possible instances of copyright infringement spurred on by economic incentives. The use of automated robots, known as "bots" or "spiders" has also led to a significant number of mistaken claims of copyright infringement. These bots operate much like the spiders that crawled through buildings in the movie Minority Report, scouring the Internet in search of file names that look like they match the names of copyrighted works or artists. In 2001, Warner Bros. sent a letter to UUNet demanding that they terminate the Internet account of someone allegedly sharing a Harry Potter movie online. The small text file was entitled "Harry Potter Book Report.rtf., with a file size of 1k. The file was not an unauthorized copy of the movie, it was a child's book report, but the bot could not tell the difference and such an "investigation" can quickly form the basis for a DMCA subpoena. RIAA also admitted numerous cases of "mistaken identity" based on the mistakes of these bots. In one case, RIAA demanded the take down of Penn State University's astronomy department's servers during finals week, based on a claim that it contained infringing songs by the artist Usher. In fact, "Usher" is a professor's last name and the file at issue was his own creation. RIAA later admitted sending at least two dozen other mistaken notices to Internet users as part of its campaign to warn peer-to-peer file-sharers.

Groklaw: In looking at the Lexmark, Online Policy Group v. Diebold, and other cases, in addition to your own, it seems copyright holders are trying to stretch the DMCA beyond even its intended scope, vast though it already is. And there is some pushback, thinking particularly of DMCRA. Do you have an opinion on the future of the DMCA? No doubt you've analyzed it thoroughly. Do you see any legal approach that no one has yet tried, to invalidate or at least limit its reach? (By the way, my readers are not as much interested in the issue of file-sharing, to my knowledge, as much as in the areas of fair use, free speech, access to public domain works, and the ability to reverse engineer software. It's a tech/legal crowd. And I think it's safe to say that they worry about what has happened to the balance that existed in the pre-digital world, where fair use was a broader right.)

Deutsch: I think that's exactly right. There is a clear strategy afoot by the content community to use litigation to push the DMCA beyond any rational interpretation. Luckily, in the RIAA v. Verizon case, the court refused to accept their aggressive interpretation. Similarly, in Chamberlain v. Skylink, the court struck down the ridiculous notion that a plaintiff could sue a competitor under the anticircumvention sections of the DMCA (Section 1201) for manufacturing a universal garage door opener. And now, just yesterday, the 6th Circuit in the Lexmart case overruled the lower court holding:

"...I believe the consumer has a right to use the Printer Engine Program for the life of the printer. Because the consumer has this right, there is no right of the copyright owner to prevent the consumer from using the Printer Engine Program, and therefore, Defendant cannot be found in violation of the DMCA."

Undoubtably, the content community will try to re-open many other areas of the DMCA to their advantage, but I'm hopeful that all three cases discussed above will send a powerful message to potential plaintiffs not to waste their time trying to re-write the DMCA through litigation test schemes. Verizon has endorsed Congressman Boucher's DMRCA (HR 107), which tries to restore much of the balance to the DMCA in areas that benefit the reasonable expectations of consumers.

Groklaw: In the SCO situation, which is what my readers particularly are interested in, they have mentioned the DMCA. In a worst case scenario, were SCO to actually demonstrate it has ownership of the relevant copyrights, what exactly could SCO do to Linux users? They have in the past threatened actions against end users for contributory infringement, a plan that seems to have been derailed for the moment by Novell claiming that it still holds the copyrights that are relevant. That matter is still being resolved, but should SCO prevail, what exactly could they do? Here is a snip from a transcript of a July 21, 2003 teleconference in which David Boies mentioned contributory infringement:

Boies: Well, the copyright laws provide a wide range of penalties. There are statutory penalties that permit you to recover a amount per violation without having to prove actual damages. In addition, if you can prove actual damages, you are entitled to recover those as well. There are also additional penalties for what are described as willful violations. And I think one of the points of what the company is doing is to try to make sure people are aware of their obligations in the hopes that they will decide that they do not want to knowingly violate the copyright laws. . . .

Boies: It is, and under the copyright law, you may sue both for infringement and for what is called contributory infringement. Which is that if anyone contributes to somebody else's infringement, that is somebody who can be sued directly under the copyright laws. So that if a third party distributor was found to have engaged in conduct that contributed to an end user's infringement, that person would also be liable, under the copyright laws. . . .

Follett: Hello. You were talking earlier about contributory infringement. I was wondering would that also create liability for VARs or integrators that might be implementing Linux? And if so, do you have plans to pursue litigation against those people?

Boies: I think that it could include those people. It would depend on the circumstances. But certainly in a number of situations, contributory infringement could include those people.

Deutsch: I'm not very familiar with this case, but am very concerned about a push by the content community to expand the doctrines of contributory infringement to create a new cause of action for "inducing" infringement. Senators Hatch, Leahy, Daschle and Frist introduced the Induce Act, S. 2560 last session of Congress. The bill was extremely controversial because it created a new cause of action for inducement for any company or individual who simply offered a product or service that the copyright owner could allege resulted in someone else infringing another's copyright. The intent was to go after some "bad apples" (certain P2P companies) but the actual language targeted virtually every digital product and service on the market today and it would certainly have chilled innovation in new technologies. We participated in negotiations with the content community and tried to narrow that bill, but the negotiations collapsed last month. That bill could be introduced again in some form next year.

Groklaw: I think it's fair to say that Groklaw's readers are concerned deeply about what they view as an erosion of their fair use rights. What, if anything, can individuals do to reverse this trend? Was there anything you wished we had done in support of your efforts that we failed to do?

Deutsch: Our case had more to do with privacy rather than fair use rights, but I think it's fair to say these issues are converging. We were thrilled with the outpouring of support we received from the user community and organizations advocating for consumers' interests -- just to name a few -- EFF, Consumers Union, Consumer Federation of America, Wired Safety, ACLU, Public Knowledge, Digital and the Center for Democracy and Technology. There are many ways consumers --through these groups -- can become directly involved in advocacy efforts to ensure that reasonable expectations for uses of digital works are not eroded. Copyrights deserved to be respected, but at the same time, the consumer should expect that the same rights they enjoy in the physical world will not disappear as code is used to control content in the digital world.

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