Saying the Digital Millenium Copyright Act does not violate the First Amendment, the Justice Department has sided with the Recording Industry Association of America in its lawsuit to force Verizon Internet Services to crack down on peer-to-peer online file swapping involving copyrighted materials.
The RIAA welcomed the Justice Department filing - in Verizon's appeal of an earlier ruling in favor of the RIAA - as support for "the proposition that we have long advocated: copyright owners have a clear and unambiguous entitlement to determine who is infringing their copyrights online and that entitlement is constitutional," as RIAA senior vice president for business and legal affairs Matthew Oppenheim said in a statement.
But Verizon insists the RIAA refuses to consider privacy claims - and that the Justice Department ignored those claims entirely. "We would have expected they would have recognized there are important privacy and safety issues beyond the narrow copyright claims here," Verizon vice president and associate general counsel Sarah Deutsch told reporters.
In an April 18 filing in U.S. District Court, Washington, assistant U.S. attorney general Robert D. McCallum, Jr. and U.S. attorney Roscoe C. Howard, Jr. argued that Verizon failed to establish a First Amendment violation by the DMCA's Section 512 that allows a copyright holder to get the name, address, and telephone number of an alleged violator to take action against him.
"On its face, (512) does not proscribe spoken words or conduct that is patently expressive or communicative or integral to or commonly associated with expression," McCallum and Howard wrote in the filing. "…(I)t is manifest that the DMCA's subpoena provision targets the identity of alleged copyright infringers, not spoken words or conduct commonly associated with expression."
Verizon has argued that that clause in the DMCA could open up a door for stalkers and other criminals to use the law to track down and harm victims. That argument usually falls on deaf ears among the RIAA. "Verizon's persistent efforts to protect copy thieves on pirate peer-to-peer networks will not succeed," Oppenheim said.
Verizon has appealed a federal judge's January ruling upholding the RIAA's bid to force Verizon to turn over the name of a single P2Per who uses Verizon as an Internet service provider.
"Verizon does not condone copyright piracy," a company statement said after that January ruling. "This decision distorts the carefully balanced compromise between copyright owners, service providers and Internet users in Section 512 of the Digital Millennium Copyright Act. Verizon is opposing this to protect the privacy rights of the vast majority of consumers who are not engaged in illegal activity.
"The decision raises serious privacy implications and due process concerns," that statement continued. "It opens the door for any person claiming to own a copyright to submit a one-page form to a clerk of a court and obtain the unlimited ability to collect private subscriber information. This decision, if not overruled by the Court of Appeals, will become subject to numerous abuses and should not be left unanswered by Congress."
The Justice Department filing also argued the DMCA doesn't violate due process because the Constitution does not bar such an investigative process as the DMCA's explicitly. The DMCA mandates recording companies to get court clerk approval before asking for any Internet service provider to give up a customer's name. But Verizon has argued that the record companies should be made to get the approval from a judge.
The Justice filing also argued that copyright law and the DMCA have "several protections" that guarantee an ISP will not be forced to give up a customer's name "without a reasonable showing that there has been a copyright infringement."
