BY ANTHONY CRUPI A federal judge last week ordered Verizon Communications to comply with a Recording Industry Association of America (RIAA) subpoena and hand over the name of a KaZaa user who allegedly downloaded hundreds of MP3 files — in one instance, more than 600 songs in a single 24-hour period. U.S. District Judge John Bates said the 1998 Digital Millennium Copyright Act (DMCA) requires Verizon to do so. But the decision may reach beyond the music industry. A copyright attorney familiar with Judge Bates’s 37-page decision told Cable World the ruling could ultimately enjoin all networks, including those overseen by MSOs, to police themselves. They could perhaps even be held accountable when piracy does occur. Verizon and consumer advocacy groups have argued that the DMCA does not adequately protect the user’s right to privacy. “Verizon is not attempting to shield customers who break copyright laws,” said Sarah B. Deutsch, VP and associate general counsel for Verizon. “We are, however, seeking to protect the fundamental privacy and due process rights that should be afforded to our customers and all Internet users.” Deutsch said Verizon would appeal the decision. The cable industry has kept a watchful eye on the case, as it has the potential to impact high-speed data offerings down the road. Although some ops declined comment on Judge Bates’s decision, saying that it was still too early to predict what the upshot may be, Comcast expressed reservations similar to those of Verizon. “Comcast views privacy as one of our top priorities,” said spokesperson Sarah Eder. “When you’re dealing with a customer base of over 3 million users in 41 states and a convergence of future networks, you’re dealing with an enormous number of data streams. To weed through them all to focus on one or two in particular would impact our privacy concerns as well.” The MSO also expressed the belief that the music industry would have to devise a better way to protect its artists and that it would like to see the Internet become a vehicle for legitimate music sales. Of course, the question of ultimate liability has yet to be solved. Daniel Brenner, the NCTA’s SVP for law and regulatory policy, said the DMCA’s subpoena requirement applies to the cable industry as well as the ISPs. And while subpoenas have been served to a handful of MSOs in the past, it is the NCTA’s policy, under the Cable Privacy Act, that operators inform customers before taking any action. “There’s a tension between the provisions of the Privacy Act and this decision,” Brenner said. “The court has yet to decide where ultimate culpability lies, but as it stands it’s a question of statutory interpretation.” In terms of Verizon’s culpability, there’s no question. The copyright attorney characterized Judge Bates’s decision as “a meticulously crafted opinion that leaves little doubt as to the authority of the DMCA.” Still, nagging questions about the role of the MSO remain. Jupiter Research analyst Lydia Loizides said that cable operators who offer HSD services over their networks may find themselves in a precarious position. “At some point someone has to be the gatekeeper,” Loizides said. “And as the gatekeeper, there’s nothing you can do but see to your responsibilities. You can’t simply relinquish your position.” Beyond the MSOs that may have to take on the additional responsibility of policing network activity, HSD consumers may feel burdened by the Bates decision as well. “From a customer adoption perspective, this is not great news,” said Yankee Group analyst Adi Kishore. “It definitely decreases the value of the broadband experience in some sense.” Ultimately, Kishore believes cable will follow whatever the courts dictate. “Since none of this will prove to be a competitive differentiation, I can’t see any one of the MSOs stepping out of line to fight any future regulations.” Rather than throwing a scare into the ISPs, the RIAA may be trying to shake up even casual peer-to-peer users. Clearly something has to give. Although Napster, the most (in)famous P2P network, is long gone, the number of unique P2P applications (KaZaa, LimeWire, et al) has skyrocketed to 130. In the last year alone, P2P Web pages rose more than 300% to 89,000, according to the employee Internet management service Websense. “P2P works on the drug dealer model,” Kishore said. “Once you try it, you’re hooked.” It may take more than a little litigation to scare off users. Will the MSOs hold their ground?

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