It should be noted, and celebrated, that Verizon won its appeal against the RIAA for its subpoenas. I posted about this elsewhere but I'll summarize here as well.
The Digital Millennium Copyright Act includes some language that allows copyright owners to subpoena ISPs for the identities of people who, according to the RIAA's interpretation, are sharing files. The DC Circuit Court of Appeals disagreed, and said that only ISPs who were actually hosting infringing material could be subpoena'd, not ISPs who merely transmitted data from one user to another node on the Internet. Verizon was being subpoena'd for its subscribers' identities, people who used it in order to connect to the Internet. This wasn't the same scenario as if Verizon's users had posted copyrighted material on Verizon's servers. The Appeals Court said that the statute itself made the distinction between types of ISPs and didn't allow subpoenas to be brought against a transmission-type ISP. Resting on statutory interpretation the Court made no inquiry into any of the Constitutional arguments that might have come in to play if the statute had permitted subpoenaing those ISPs as well.
Regardless of filesharing, the Appeals Court's decision was a good one from a civil liberty standpoint. Although we haven't studied it yet in Civil Procedure, my understanding is that the RIAA subpoenas differed from normal subpoenas in that they could be served without the standard judicial oversight that normally applies. This meant that the RIAA could menace (and in fact did) all sorts of people with the threat of ruinous lawsuits without demonstrating to a court any sort of justification beyond mere suspicions of wrongdoing. Pretend the RIAA isn't the party involved - we really wouldn't want subpoenas to be so easily issued in any sort of case.
My problem with the decision is that in the dicta the Court sounded overly sympathetic to the "plight" of the recording industry. The concern is that the Court might not be inclined to balance its interests with the other Constitutional concerns that arise in contemporary copyright debates. The problem is that the RIAA is winning the rhetorical war, that people are starting to accept that filesharing is "bad" without giving it a thoughtful analysis on whether it actually is bad, or stealing, or adverse to the industry's interests, or even contrary to some sort of industry entitlement. In these areas the counterarguments to the RIAA's position need to be articulated loudly and more publically.
Date changed to reflect when it should have been posted. Actually posted 1/2/04.