Darknet Blues

The Music Industry Makes Peace With Big Software—at Dial-Up Speed

Alan Kilkenny heard the future in 1981, and it was good. "The Compact Digital Audio Disc is another step forward in an exciting new age of digitized sound," he enthused in the professional journal Studio Sound. "Sooner or later we can expect the link to the home to be digital as well, bringing live concerts into the home with alarming realism." The man who wrote

those prescient words was no wild-eyed cyber-visionary. He was a spokesman for the consumer electronics giant Sony, which had just developed the compact disc in partnership with Philips, the Dutch conglomerate that also owned PolyGram Records. The slogan that Philips and Sony devised for the new format pegged the music industry's rosy view of digital technology: "Perfect Sound Forever." By 1990, almost a billion CDs were sold every year.

More than 20 years and billions of downloads later, Kilkenny's new age is way behind schedule. Nearly 20 million Americans use high-speed broadband connections, but there's very little legally sanctioned music coursing through those millions of miles of fiber optics. While the record labels have made peace with the side of the high-tech world that can help them fight piracy, they're locked in a battle with Internet service providers, the broadband gatekeepers whose cooperation is key to the future of digitally delivered music.

Although the labels' ingrained caution ensures that change still happens at dial-up speed, MusicNet and Pressplay, both owned by the major labels, have finally been joined by a handful of independent online music vendors. AOL recently introduced a service that allows unlimited streaming and limited downloads for a monthly fee. Apple will soon sell online music to Mac users with enthusiastic support from the same labels so offended by the "Rip, Mix, Burn" ad campaign. These changes have come during a period of drastic retrenchment in the music industry, still reeling from 2002's dismal sales. Top management is fluid everywhere, and Recording Industry Association of America CEO Hilary Rosen, the public face of the industry's battle against downloaders, announced her resignation. Supposedly, she will be missed.

Rosen's announcement came the same week in January that the RIAA scored a key legal victory in its ongoing effort to dictate the terms of that culture shift. A federal judge ordered Verizon to reveal the identity of a broadband subscriber who the RIAA accuses of massive file-trading via Kazaa. Emboldened by the decision, the RIAA demanded the name of another alleged infringer in February. Verizon is frantically appealing, in anticipation of a firestorm of subpoenas. This week, Verizon lawyers are asking a judge to quash the second subpoena, arguing that by the time the appeal is heard, the RIAA will have demanded thousands of names.

While Verizon appeals, the case has become a bellwether of how assiduously Internet service providers need to protect the music industry's intellectual property. The Digital Millennium Copyright Act of 1998 gives the biz enormous leeway in pursuing pirates. Service providers are required to reveal the name of any subscriber suspected by a copyright holder of storing proscribed material on the service provider's network. Anonymous "John Doe" lawsuits are also authorized, an option those thus empowered have declined to exercise. "The subpoena power the entertainment industry has is unprecedented, at least on the federal level," says Fred von Lohmann, an attorney for the Electronic Frontier Foundation. "It's the kind of power normally reserved for law enforcement agencies."

The industry's problem is that the DMCA was designed for a pre-Napster world. Since peer-to-peer, the overwhelming majority of MP3s have been stored on personal hard drives, rather than on disks maintained by service providers. Verizon argues that the law doesn't require the company to violate the privacy of people who use Verizon's network only as a "pipeline." Why, Verizon lawyer Sarah Deutsch asks, doesn't the RIAA exploit the DMCA's 'John Doe' lawsuit provision? "I think they're afraid of accidentally suing a 12-year-old. But they want us to hand over hundreds of thousands of names, so they can take them to a private investigator, filter out the 12-year-olds and grandmothers, and find the most unsympathetic person."

"That's an unbelievable projection on Verizon's part," responds RIAA president Cary Sherman. "We want to deal with as many people as possible, some by suing them, some by warning them. Verizon is basically telling us they prefer we sue their customers, rather than warn them." But precedent supports Deutsch's suspicion. According to the fair use advocacy group Public Knowledge, Warner Bros. asked UUNet to cut off a subscriber with a "Harry Potter" file on his hard drive. It turned out to be a child's book report.

But as a referendum on the DMCA, the RIAA's lawsuit also addresses far broader issues of privacy and due process in the online world. Under the law, anyone who claims to be a wronged rights-holder can go to a service provider with someone's Internet protocol address (easily obtained in most file-sharing programs), and compel the provider, without a court order, to reveal that person's identity. In a strange accident of history, the way the courts interpret the DMCA could test the limits of online privacy in the new surveillance state almost as tellingly as the Patriot Act.

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