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From NewsFactor Business:

Backlash Predicted in File-Swapping Wars

James Maguire, www.NewsFactor.com

Responding to the music industry's threats of legal action against a mass of individual P2P users, the Electronic Frontier Foundation has created a Web page where users can check to see if they are being targeted by the RIAA, the industry trade group bringing the suits. The EFF's Web page enables users to check for their user names before a subpoena reaches them. At least two ISPs say that if a user responds within seven days, the ISP can deny the RIAA's subpoena and refuse to turn over personal contact information.

The move by the EFF followed a new offensive by the RIAA; the group has sent out over 900 subpoenas to ISPs since July 26th to gain the information necessary to file civil lawsuits against individual file swappers.

Although some industry observers say the RIAA's targeting of individuals will create a backlash, RIAA spokesperson Jonathan Lamy told NewsFactor the group's efforts are working. "If you look at the lawsuits we filed against four college students who were running mini-Napster networks, within days of that announcement nearly two dozen similar networks across the country came down."

But Yankee Group analyst Mike Goodman told NewsFactor that "this is going to make a lot of people unhappy. And who do you think these people will turn to? Their congressman. At that point, all the PAC [political action committee] money in the world won't save you.

"I would love to see the first time a senator's or a congressman's kid gets a subpoena," Goodman said.

Subpoena Database

At the EFF site, users can enter their file-sharing moniker to see if they are being subpoenaed. The site queries a database that includes a list of subpoenas filed in the Washington, D.C., district court.

If an individual's moniker is in the database, that does not necessarily mean they are being subpoenaed. Many file-sharing nicknames are used by more than one person.

For each nickname used, the EFF lists a link to the PDF file of the subpoena. This includes the ISP name, the IP address of the individual, and the list of songs an individual has distributed.

For those individuals involved, the Subpoena Defense Alliance lists attorneys and additional legal information.

Could Target Anyone

The RIAA's new wave of subpoenas is intended to target heavy P2P users, according to the trade group. But what precisely constitutes a heavy user is unclear.

Experts say the action is most likely to target users who have a T-1 connection, keep their systems on continuously, and share thousands of files. Also most likely to be targeted are supernode P2P users, individuals whose systems are used as major network connection points for services like Kazaa.

Although such users are most commonly found in universities, any user with a high-speed connection may fit these profiles.

The RIAA will begin filing these suits in late August or early September, coinciding with the start of the new school year. As for the penalty, "we'll leave it up to the court to decide" dollar amounts, RIAA's Lamy said.

The RIAA's court filings show the organization is likely to use snapshots of a P2P user's shared file folder as evidence in lawsuits.

ISP Struggles

Under the 1998 Digital Millennium Copyright Act, a copyright owner can issue a subpoena to force an ISP to turn over the name of suspected copyright infringer.

Verizon, an ISP, has been attempting to overturn this law. Verizon, along with another ISP, SBC Communications, has informed users that they seven days to challenge a subpoena. If the ISP does not hear from the user's attorney in that seven-day period, it will turn over the information to the RIAA.

Losing Battle

"This is one of those wars where they're going to win every battle and lose the war," Goodman said of the RIAA's efforts to combat P2P piracy. "P2P networks are like cockroaches. As soon as you eliminate one, a dozen new ones come scurrying forth."

As an alternative to legal action, Goodman said that digital rights management [DRM] software could be used to create files to be posted on P2P networks that would create profit for the music industry. Users would pay for such files because they are virus free and clearly labeled, he said.

He pointed to Altnet, which runs in conjunction with the Kazaa network and charges fees to downloaders. As of two months ago, "they were doing about two million licenses a month, and about a third of them are paid," Goodman said.