Following the Law (as in Tracking Legal Decisions) Is a Civic Duty

Carl Weinschenk

All too often, the gap between the legal community and the rest of us is so wide that judicial decisions are not understood or even read. The people who make the decisions seem so smart that it makes sense to just accept what they write and move on. But following what happens in the courts is an important part of participatory democracy. Decisions that deal with telecommunications issues are, of course, especially important to people in the field.

Last week, Judge Beryl A. Howell of the United States District Court for the District of Columbia handed down a decision in which she denied Time Warner Cable's motion to quash, or end, an order for it to name about 250 subscribers who are accused of infringing on copyrights by downloading movies using peer-to-peer networking from BitTorrent. The plaintiffs in the case were Maverick Entertainment Group, Donkeyball Movie and Call of the Wild Movie.

Technically, the motion was granted in relation to Maverick simply because the company had presented the subpoena incorrectly (via fax rather than in person). Maverick has ten days to re-serve Time Warner Cable. If it does so, presumably, it will have the right to the subscriber information as well.

Of course, the legality of P2P has been a contentious issue back to the Napster days. The crux of the decision focuses on First Amendment rights. Howell begins in a way that is promising to Time Warner Cable and the accused subscribers. She points out that the First Amendment grants anonymity when an individual is engaged in "expressive communications." She found that the defendants had done so simply by choosing to transmit the movies they did as opposed to something else.

That's the end of the good news for the defendants, whose days of anonymity seem numbered. From the decision:

File-sharers therefore do engage in expressive activity when they interact with other users on BitTorrent. The First Amendment interest implicated by their activity, however, is minimal given that file-sharers' ultimate aim "is not to communicate a thought or convey an idea" but to obtain movies and music for free ... Even if expression were an ancillary aim, the underlying method of the users' communication is illegal. This Court therefore joins a number of other jurisdictions who have deemed that a file sharer's First Amendment right to anonymity is "exceedingly small."

I've taken out some of the off-putting legal citations from this excerpt. The bottom line, then, is that folks who probably are breaking the law maintain some rights, but they are easily overcome by the rights of the parties who likely are being wronged by those people. That makes sense at the visceral level. Illegal behavior should not be condoned, and the aggrieved party has a right to ferret out the transgressors and take them to court.

There is a problem, however. There seem to be different standards for a cable company and other types of public telecommunications carriers. Telcos have been compelled to provide the government with subscriber information in cases where terrorism is suspected. But, as low class as stealing movie downloads may be, the public is not endangered. It is a garden variety criminal activity. At what point is a telephone company compelled to surrender the identity of somebody who used its network to plan a bank robbery? If it is suspected that a pirated copy of a movie is being sent via the U.S. Postal Service, would the copyright owner be entitled to information about the recipient and where the package originated?

I suspect that the answer to both questions is yes. But I'm not a lawyer and I'm not sure. I'm also not sure of the differences, if any, in the hoops that law enforcement would have to jump through in each case.

At the highest level, it is important that non-lawyers continue asking these type of questions-even if they are not worthy of a first-year law student. They also should have access to answers that are not written in indecipherable legalese.


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