WASHINGTON - A U.S. appeals court wrestled with questions Tuesday over whether the music industry can use special copyright subpoenas in its campaign to track and sue computer users who download songs over the Internet.
Judge John Roberts of the U.S. Court of Appeals for the District of Columbia challenged Recording Industry Association of America lawyer Donald B. Verrilli Jr. on whether computer users downloading music were any different from people who maintain libraries in their homes.
Roberts questioned whether the fact that copyrighted files were publicly accessible on someone's computer necessarily means the Internet user is illegally distributing those files. File-sharing software typically stores downloaded music in a computer folder that is freely available for other Internet users to browse.
"Isn't is equivalent to my leaving the door to my library open?" Roberts asked. "Somebody could come in and copy my books but that doesn't mean I'm liable for copyright infringement."
Roberts and the other two judges hearing the case also posed tough questions for Verizon Communications Inc., which is challenging the constitutionality of the subpoenas under the 1998 Digital Millennium Copyright Act. U.S. District Judge John D. Bates earlier had approved use of the subpoenas, forcing Verizon to turn over names and addresses for at least four Internet subscribers.
"You make a lot of money off piracy," Roberts told Verizon lawyer Andrew McBride. People who download large collections of music traditionally favor high-speed Internet connections like those offered by Verizon's Internet subsidiary.
"That is a canard," McBride shot back. He said Verizon makes money when computer users purchase songs from online services affiliated with Verizon.
The 1998 law, passed years before downloading music over "peer to peer" Internet services became popular, permits music companies and others to force Internet providers to turn over the names of suspected pirates upon subpoena from any U.S. District Court clerk's office. A judge's signature is not required.
Critics of the procedure contend judges ought to be more directly involved, given the potential privacy issues involved when a corporation is asked to reveal personal information about customers who may be accused of wrongdoing.
In an unprecedented crackdown on music piracy, the Washington-based Recording Industry Association of America issued at least 1,500 such subpoenas this summer. It has filed civil lawsuits against 261 people so far it accused of illegally distributing music online and promised thousands more lawsuits.
The three-judge panel must decide whether Bates correctly ruled against Verizon earlier this year.
Verizon had argued unsuccessfully that Internet providers should only be compelled to respond to such subpoenas when pirated music is stored on computers that providers directly control, such as a Web site, rather than on a subscriber's personal computer.
Many of the day's courtroom arguments focused on esoteric provisions of the complex 1998 law, such as whether a computer connected to a file-sharing service functions as an "online site" - a crucial legal distinction for the music industry to successfully issue subpoenas.
Senior Judge Stephen F. Williams told Verrilli that permitting subpoenas in these cases "makes a lot of sense from a policy standpoint," but questioned whether they were permitted under some interpretations of the law.
In his ruling, Bates had criticized Verizon's "strained reading" of the law. He wrote that Verizon's interpretation "makes little sense from a policy standpoint," and warned that it "would create a huge loophole in Congress' effort to prevent copyright infringement on the Internet."
Sen. Sam Brownback , R-Kan., said he planned to introduce a bill Tuesday to protect Internet providers from such subpoenas. His proposal would block subpoenas except in pending civil lawsuits or in cases where pirated data files were stored on computers such as Web sites.
Still, a courtroom challenge may be Verizon's best hope.
Senate Judiciary Committee Chairman Orrin Hatch, R-Utah said last week that it was too early to consider changing the 1998 law. He asked lawyers on all sides and consumers to report to his office about their experiences with these subpoenas over the next six months.