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Pyrrhic Victory

The victory by Verizon in the U.S. Court of Appeals for the District of Columbia negating the ability of the Recording Industry Association of America to use copyright subpoenas to force ISP's to reveal suspected file traders account information may turn out to be a hollow one. From this AP story on the decision the new RIAA strategy is coming to light.

Earlier this week, the recording industry sent letters to the 50 largest U.S. Internet providers asking them to forward written warnings in the future to subscribers caught swapping music.

Details were still being worked out, but if Internet providers agree, subscribers who swap even modest collections of music online could receive the ominous warnings.

The letters demanding an end to the practice would be forwarded without revealing subscriber identities to music lawyers. The warnings would be mailed directly to Internet account holders - potentially alerting parents or grandparents about illegal downloading in their households they might not know about.

Expect the RIAA to blanket the universe with these warnings, since they don't really cost anything to produce. Guess who gets stuck with the work? The ISPs.

The smart ones are going to demand compensation from the RIAA for forwarding these messages. The request from the RIAA will probably contain and IP address and a date/time stamp, which is not a lot to go on. Most ISP's use dynamic addressing so some level of log review would probably be required.

It's going to be harder on the RIAA to bring suits against traders so expect them to try it issue millions of warnings. Really the best hope for music swappers is if ISP's balk at doing the scare tactic work for the RIAA.

Friday's ruling will make identifying defendants for future lawsuits more difficult and expensive. The ruling forces the recording industry to file civil lawsuits against "John Doe" defendants, based on their Internet addresses, then work through the courts to learn their names.

Cary Sherman, president of the recording industry group, said the ruling "unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation."

The real question is how many "John Doe" lawsuits the RIAA will file. There is no indication that the criteria will be any different than with the first round of lawsuits.


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