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Ingram: Record industry plays hardball with Kazaa

Somewhere in Pittsburgh, an Internet user sits, trading music files through the file-sharing network known as Kazaa - unaware that he or she is the target of a massive lawsuit launched by the Recording Industry Association of America (RIAA). Remember when the record industry went after Napster, one of the first file-sharing networks, and Napster argued that it was like the phone company, in that it couldn't control what users did with its service? The RIAA must have taken that as a dare, because now they're going after the phone company itself, in this case U.S. provider Verizon.

In a way, Napster was a fairly easy target for the recording industry, because it had its own central servers - computers that acted as a kind of traffic cop for the millions of file-sharing requests that were sent out every day on the network, which had 35 million registered users at its peak. Not only that, but both the company and all its equipment were based in the United States, and registered there, meaning they were bound by the rules set out in the Digital Millennium Copyright Act.

Kazaa is a different story altogether. As a truly "distributed" network, it doesn't have any real central servers the way Napster did - it does have what are called "super-nodes," which serve a similar function, but they are merely individual users who agree to play that role. In addition, Kazaa is owned by a company called Sharman Networks, which is based in Australia and registered in the tiny nation of Vanuatu, a chain of islands in the South Pacific. That makes it a tougher target.

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As the RIAA pursues a court case against Kazaa and its peers - including the open-source Gnutella network, as well as Grokster and iMesh - it is also waging its war against digital piracy on a number of other fronts. One is through the use of what might be called "covert tactics," such as scattering fake Mp3 files throughout Kazaa and other networks in order to dissuade downloaders. Another is to go after individual users directly, and that is where the lawsuit against Verizon comes in: the RIAA wants it to tell them who the super-user is they have chosen to target in Pittsburgh.

On Monday, the RIAA asked a federal court to force Verizon to reveal the name and address of the individual - who is apparently completely unaware that he or she is the target of the industry's manhunt. Verizon, one of the largest Internet service providers in the United States, is resisting the attempt on the grounds that it should not have to intrude on its customer's privacy in that way, and that as an ISP it is merely acting as a "conduit" for the file-swapping they are engaged in. "We don't want to be the policeman in this process," Verizon lawyer Eric Holder said.

The service provider's argument is related to the so-called "common carrier" defence used by telephone companies in other cases, in which the phone companies have argued that they merely transmit data back and forth like a pipeline - without any real knowledge of whether that data is illegal or not. Therefore, they argue they can't be held accountable for any criminal activity that may or may not be involved (this defence has been used in cases involving telephone fraud, for example).

The phone company - which is being supported by dozens of other Internet service providers in the United States - is also concerned that if the RIAA is successful, they could be hit with a blizzard of requests to identify individual users of Kazaa and other file-sharing networks, since there are millions of users on those networks virtually all the time. That would create an administrative burden that would be insurmountable, the company argues, in addition to the civil rights issues involved.

For the RIAA there is a lot at stake in the Verizon case, because the industry hopes that it will set a precedent, allowing it to go after individual super-users directly - which the record labels feel would present a lot more of a deterrent than the current process. Under existing U.S. federal laws, a copyright holder can inform an ISP such as Verizon of a particular user's infringing activity and the ISP is then supposed to take action by cutting off the user in question. That is time-consuming, however, so the RIAA is looking for a larger-scale solution.

One thing is for sure: the industry is right to be concerned about the size of the problem. On any given day, more than three million people are connected through the Kazaa network, sharing in excess of 500 million audio, video and other files. The user in the current case came to light during an investigation by the RIAA, which found a super-user in the Pittsburgh area sharing more than 600 songs. On July 24, the industry group served Verizon with a subpoena asking it to identify the user, and the company refused. The RIAA wants the court to enforce the subpoena.

Under the Digital Millennium Copyright Act, the record industry is entitled to file such a subpoena and the ISP is required to divulge the user's identity - but Verizon argues that this is only applicable if the copyrighted content in question resides on the phone company's servers. If it is on an individual's own computer, the phone company says the law requires that the RIAA file what is called a "John Doe" lawsuit against the individual, at which point the user would be notified, and then could decide whether to allow Verizon to reveal his or her identity to the RIAA.

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Even as this court case progresses, meanwhile, the RIAA has other irons in the legal fire that could give it even more power to go after individual users: for example, a U.S. congressman has proposed a law that would allow the industry to gain electronic access to a user's computer directly - in effect, to "hack" into it - in order to see what files they have. While they would not be allowed to alter those files, consumer rights advocates still see this as an unreasonable infringement on individual rights.

To which the RIAA might respond: All's fair in love and war.

E-mail Mathew Ingram at Look for exclusive Mathew Ingram commentary at GlobeInvestorGold

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