Subpoenas Sent to File-Sharers Prompt Anger and Remorse
By AMY HARMON
A blizzard of subpoenas from the recording industry seeking the identities of people suspected of illegally swapping music is provoking fear, anger and professions of remorse as the targets of the antipiracy dragnet learn that they may soon be sued for hundreds of thousands of dollars in damages.
The Recording Industry Association of America has obtained close to 1,000 such subpoenas over the last four weeks to more than a dozen Internet service providers, including Verizon, Comcast and Time Warner Cable, and several universities, including Boston College and the Massachusetts Institute of Technology, demanding the names of file swappers. Most Internet providers are notifying the unlucky subscribers by mail that they are legally required to turn over their contact information.
Those on alert include several college students, the parents of a 14-year-old boy in the Southwest, a 41-year-old Colorado health care worker and a Brooklyn woman who works in the fashion industry.
"They could have used some other way to inform people than scaring the bejiminy out of them," said a mother who received a copy of the subpoena last Wednesday, listing several songs that her 14-year-old son had made available for others to copy from his computer. "If someone had sent me a letter saying `this is wrong,' you can bet your sweet potatoes that would have gotten my attention. This just seems so drastic."
The ominous letters and a list of screen names culled from court filings that is circulating on the Web underscore the unusually personal nature of the industry's latest effort to stamp out online piracy, which it blames for a 25 percent drop in sales of CD's since 1999. Under copyright law, the group can be awarded damages of $750 to $150,000 for each copyrighted song that was distributed without authorization.
Some of the targeted Internet users expressed shock that they were singled out for an activity that tens of millions of Americans are believed to engage in. Others said they were unaware they were doing anything wrong. Most of those interviewed refused to be identified by name, citing privacy concerns and the potential impending legal action against them.
The mother of the 14-year-old boy said she had assumed that her son's file-swapping was all right because she knew that Napster, the company that drove the original wave of online music piracy, had been shut down after the record companies sued. Any other company whose software is used by so many of her son's friends, she reasoned, must have done something different to be allowed to continue operating.
After receiving a copy of the subpoena in the mail on Wednesday, the mother said she did some research and learned that though the software itself might be legal, the way her son was using it was almost certainly not. The 150 songs her son had on his computer have been deleted, along with his computer privileges for the rest of the summer.
"We've had extensive discussions about why it was wrong, and how it's kind of like plagiarism, taking someone else's words or someone else's music and not giving them credit for it," she said. She added that her son stayed in his room all day, while her older daughter worried that her parents would not be able to pay for college next year.
The notion of paying up to $150,000 for each of the eight songs that the recording industry listed on the subpoena ? not to mention lawyer fees of $200 an hour should the family decide to fight a lawsuit ? still boggles her mind. "Hopefully when they find out he's just a kid, they'll drop it," she said.
But not necessarily. Frustrated with the failure of warnings and educational campaigns to stem the flood of online music trading, the major music companies said on June 25 that they intended to sue hundreds of individuals as a form of deterrence.
"I guess people didn't take it seriously, but we really are very serious about this," said Cary Sherman, president of the Recording Industry Association of America. "We want the message to get across to parents that what their kids are doing is illegal. We are going to file lawsuits."
The popularity of file-sharing software, which allows users to copy music, movies and other files from one another's computers, has long benefited from a sense of impunity among users. By tearing away the Internet's veil of anonymity, the record industry hopes to scare people away from using the software and crack a cultural consensus that tends to regard file-sharing as a guilt-free activity.
Before pursuing individuals, the association sponsored antipiracy television and radio commercials; sent four million instant messages warning people using KaZaA, the most popular file-sharing software, that they were violating copyright law; and published an advertisement in The New York Times and Entertainment Weekly that began, "Next time you or your kids `share' music on the Internet, you may also want to download a list of attorneys."
The music industry also tried suing the makers of the software that succeeded Napster. But in April, a federal judge in Los Angeles ruled that two peer-to-peer systems, Morpheus and Grokster, were legal even though people used them to make illegal copies of music and movies. Music executives said they were left with little choice but to pursue the users themselves.
As news of the subpoenas spread across the Internet in recent days, many file-swappers, who often rationalize their behavior by arguing that CD's are too expensive and the record industry does not deserve their money, responded with defiance.
A spoof cartoon was widely circulated, set to the tune of the 1980's hit "We Are the World" and with the lyrics, "Sue all the world/Sue all the children." On sites like Zeropaid .com, a hub of information for file-sharing, discussion board participants vowed to boycott major record labels and called on people outside the United States ? and the restrictions of United States copyright law ? to share more files.
But many file-swappers also expressed alarm. Jorge Gonzalez, the founder of Zeropaid, said some who posted discussion board messages planned to stop file-trading altogether. Many rushed to check a list, initially published on TechTV's Web site, of the KaZaA screen names cited in the subpoenas filed in the Federal District Court in Washington.
Several lawyers said the record industry probably had a good legal case. "It's pretty well settled that it is infringing copyright to share files without permission of the copyright holder," said Jonathan Zittrain, a director of the Berkman Center for Internet and Society at Harvard Law School.
Still, some legal experts argue that the tactic is risky, particularly if the industry appears to be concentrating on families with no resources to defend themselves.
"The practice of filing thousands of lawsuits is a game of chicken, and not a sustainable model for the industry or the courts," Mr. Zittrain said. "The overall puzzle for the industry is how to truly convince the public that this is in the public interest."
He said there was no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material. He likened it instead to raids during Prohibition, or red-light cameras that catch drivers disobeying traffic laws when they think they are unobserved. Both have given rise to social outcry, Mr. Zittrain said, even though they were used simply to enforce the law.
Citing the privacy and due process rights of its subscribers, Verizon Communications has appealed a federal court decision that compels Internet service providers to turn over subscriber information without first requiring copyright holders to file a lawsuit. The company said at least one of the subscribers it notified last week had hired a lawyer and was planning to challenge the recording industry's subpoena.
The Massachusetts Institute of Technology and Boston College have declined to comply with subpoenas they received, citing procedural concerns and their responsibility to protect student privacy under the Family Educational Rights and Privacy Act.
Some lawyers who were contacted by people who received notices from their Internet providers say the cases raise many questions because of the way the software in question works.
Some versions of KaZaA automatically designate certain folders on a computer as "shared," so users may not have realized their personal music files, copied from legally purchased CD's, were available to others.
Daniel N. Ballard, a lawyer with McDonough, Holland & Allen in Sacramento, Calif., said he was representing a Brooklyn woman who believed she had prevented her files from being accessible to the KaZaA network. He said computer intruders may have rearranged the files on his client's hard drive without her knowledge.
Some say they were unaware that they were doing anything against the law.
"My daughter would never have used her name as her e-mail address if she thought she was doing anything wrong," said Gordon Pate of Dana Point, Calif., who said an Associated Press reporter found him through the telephone directory after his 23-year-old daughter's screen name, leahpate@kazaa, appeared in the court filings last week. (Most were more along the lines of "anon39023" and "RockOn182.")
But a Colorado man said he knew what he was doing was illegal; he had just not seriously considered the consequences.
"I used the program," said the man, 41, who used KaZaA to find songs that included the words "happy birthday" to play for his young daughter when she woke up on her birthday, among other times.
"It's cute, but look what happened," he said. "It's an expensive birthday, that's the reality."
Stumble It!
Tweet This
Bookmark on Delicious
Share on Facebook
Share on MySpace