Everyone has certain rights (such as anonymity) until they
commit a crime. Pirating music (whethey they're justified or not) is
still a violation of copyrights. Why do ISPs have the right to refuse
handing over the information when they can be considered criminals?
ISPs don't have the right to refuse to hand over subscriber
information, as long as the copyright holder or its assignee
begins a "John Doe" court proceeding in which the target of the suit
is uniquely identified by their actions. The ISP is then handed a
subpoena, as in any other civil case, that requests information that
is important for the court's decision, such as information that can
positively identify the John Doe. The ISP will legally have to comply
with this subpoena by providing the subscriber information to the
court.
However, the DMCA has a special provision, intended to speed copyright
holders' takedowns of infringing material from web sites, which allows
the rights holder to expedite the removal of such material by
requiring the ISP to remove it within a short period of time of
receiving the request and notifying the ISP client. The client can
halt the takedown by formally claiming that the material does not
infringe, thus leading them to some serious legal problems if they are
not telling the truth. This section of law was not written in such a
way that it is clear whether it applies equally to material that is
stored on the computers of ISP clients rather than on ISP company web
servers. (Remember, to anyone over forty, internet = web.) Thus the
possibility for the current legal conflict.
So, why are the ISPs bothering to fight this? You are right that it
is all about money, of course, but I seriously doubt that it's over
the money that the ISPs could otherwise extort from copyright holders
for this service. Try reading the sentences
"The music industry pays the RIAA to investigate and
prosecute copyright infractions. They don't pay us a penny to do
that. They don't pay ISPs a penny to do that. Even if they did, it
would be a violation of due process and subscriber privacy."
as rhetorical, as in "I don't know why I, as a state warden, have to
execute this mafia informant who happens to also be a murderer - the
mafia doesn't pay my salary, and even if they did, it would be against
my conscience as I don't believe in capital punishment." Instead, the
money in question is what the ISPs would lose if they were seen by
their customers as ready to interfere in this way with client use of
the leased bandwidth, or more likely, the money that it would cost to
even try to police copyright infringements that occurred through
internet services and were stored on client hard drives. If you don't
think it's really that much of a big deal, I'll illegally email you a
song to prove the point.
A more interesting question, though, is why doesn't the RIAA just
follow the standard process and obtain a John Doe subpoena? They must
have the evidence to do this. One possibility is that they would
rather set a precedent that they can request takedowns of infringing
material stored on client hard drives using the easy, no-fuss method
as they read Congress as having intended it. Note that this is what
they claim as their motive.
However, this rationale doesn't hold very much water, since it makes
no sense for the RIAA to try to file a lawsuit against any significant
number of file traders in an effort to eradicate infringement. The
whole strategy must revolve around suing a small subset of file
traders in an effort to remove those nodes which offer the largest set
of files and to scare off all of the rest, in effect "firing into the
crowd". It would simply be too expensive to police infringement by
catching all copyright violators - that's more than half of American
teenagers, and even an expedited discovery process is not going to
make that cost effective. In the case of a small number of lawsuits,
whether the discovery is expedited or not makes little difference and
is not worth fighting over, except on principle (which the notoriously
mercenary RIAA asserts as a secondary motive, of course.)
A moment of thought indicates that a much more likely reason to wish
for the expedited process in this case is so that the RIAA can see who
the defendant will be before they actually launch an infringement
lawsuit. With the so-called turbocharged subpoena process, the RIAA
can make a blanket call for the identity of one hundred infringers,
investigate each person on the list, and choose the one who's a
baby-beating homeless crack-ho terrorist hacker to hit with a lawsuit.
As noted above, with the demographic reality of copyright
infringement, they really don't want to follow standard practice and
blindly file a John Doe lawsuit - heavens, that person could be the
eleven-year-old granddaughter of one of the RIAA executives, or Jenna
Bush. Knowing what you're getting into before making public legal
filings that could be very embarrassing later is almost
mandatory in this situation, and you can expect the copyright holders'
organisations to press for this power as strongly as they can.
A final comment: the civil liberties organisations are not in it for
the money.
"On the face of it, Microsoft complaining about the source license
used by Linux is like the event horizon calling the kettle black." -
Adam Barr, former Microsoft employee