WASHINGTON, D.C. - Digital content creators or Internet service providers? Who is right in the heated court battle now underway? Perhaps both. The protracted legal standoff between the Recording Industry Association of America and Verizon over how to combat massive peer-to-peer music downloading was appealed by the latter to the D.C. Circuit Court. The RIAA and the content community will likely prevail. Still, a top expert believes Verizon and the Internet Service Providers make important issues that cannot be ignored.

As issue is the interpretation of the Digital Millennium Copyright Act, which the RIAA believes allows a copyright owner to obtain the identity of an alleged infringer from his or her ISP, simply be serving a subpoena. Many ISPs, led by Verizon, resist this procedure, claiming it is not authorized by the DMCA and is unconstitutional. In a new paper, James V. DeLong, senior fellow at The Progress & Freedom Foundation, examines the case and related policy questions.

“ISPs should not be forced to bear the burden of enforcement costs, in this or other contexts, and systems of cost-reimbursement need to be developed,” DeLong maintains. In addition, while he takes issue with claims of illicit downloaders to privacy and anonymity, he writes that “ISP subscribers in general can claim a legitimate need to be protected against abuse (such as cyberstalking) or mistake.” Fortunately , as the court noted, these problems are hypothetical, and sanctions already exist. Another hypothetical problem that may require a response in the future, the seeking of subpoenas for frivolous means, “bears watching,” he says.

“The existence of these concerns,” DeLong warns, “does not militate for legislative reopening of the DMCA, an action that would trigger a deluge of proposed changes and throw the area into a state of uncertainty.

“The interested parties need each other, and should be able to negotiate reasonable compromises on the outstanding issues,” he writes. “In addition, many concerns expressed by the ISPs can be addressed by the ISPs themselves.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.