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Brownback Bill Aims to Curb DMCA Subpoena Powers

Recording Industry Association of America (RIAA) President Cary Sherman is likely in for some hostile questioning Wednesday morning when he testifies before the Senate Commerce Committee on the music industry's use of the subpoena power provisions of the Digital Millennium Copyright Act (DMCA).

Chairing the hearing will be Sen. Sam Brownback (R.-Kan.), who on Tuesday introduced legislation directly aimed at curbing the RIAA's use of the subpoenas. Brownback's bill requires the owners of digital media products to file an actual case in a court of law in order to obtain the identifying information of an Internet service provider's (ISP) subscriber.

The 1998 DMCA allows copyright holders to issue subpoenas to ISPs demanding the name, address and telephone numbers of ISP subscribers suspected of illegally downloading copyrighted material. The subpoenas can be filed prior to any charges of infringement, are not subject to a review by a judge, requires no notice to, or opportunity to be heard by, the alleged infringer.

Brownback's legislation and the hearing come just one day after the RIAA and Verizon Communications debated the constitutionality of the DMCA subpoenas before a federal appeals court.

"This legislation responds directly to ongoing litigation between the Recording Industry Association of America and Internet service providers Verizon and SBC Communications," Brownback said in a statement issued by his office. "This litigation has opened wide all identifying information an ISP maintains on its subscribers, effectively requiring ISPs to make that information available to any party simply requesting the information."

Brownback said his legislation creates certain minimal protections for consumers legally interacting with digital media products protected by new digital rights management technologies.

Earlier this year, the RIAA, which served the first DMCA subpoenas on Verizon in July of 2002, won a district court decision forcing the company to reveal the names of two subscribers the RIAA suspected of illegally downloading copyrighted songs. Since then, the RIAA has issued more than 1,500 of the subpoenas to Internet service providers.

Those subpoenas led to 261 civil lawsuits being filed by the RIAA last week against alleged copyright infringers. Verizon is appealing the decision, claiming the RIAA is unfairly using the subpoenas.

"It has been determined by a federal court in RIAA v. Verizon that a provision of the Digital Millennium Copyright Act permits copyright owners to obtain an ISP subscriber's identifying information without any judicial supervision, or any due process for the subscriber," Brownback said. "The real harm here is that nothing in this quasi-subpoena process prevents someone other than a digital media owner -- say a stalker, a pedophile, a telemarketer or even a spammer -- from using this quasi subpoena process to gain the identity of Internet subscribers, including our children."

In June, Brownback moved to add an amendment to a Federal Trade Commission reauthorization bill containing much of the language of Tueday's legislation. Brownback withdrew the amendment only after Commerce Committee Chairman Sen. John McCain said he would schedule a hearing on the matter.

Wednesday, the committee plans to examine the consumer privacy implications of the use of the DMCA subpoena. According to the committee agenda, the hearing will also examine whether the government can mandate content protection technologies without limiting consumers' legal uses of digital media products.

In addition to Wednesday's hearing, Sen. Norm Coleman (R.-Minn.) has scheduled a Sept. 30 hearing of the Senate Permanent Subcommittee on Investigations (PSI) to further look into the matter. As chairman of the PSI, Coleman has expressed concern that nominal or unsuspecting downloaders may be targeted by the DMCA subpoenas and that fines of up to $150,000 per downloaded song may be out of proportion to the nature of the offense.

"My goal is to focus on today's problems facing both consumers and the industry given the runaway expansion of file-sharing with an eye toward tomorrow's solutions," Coleman said. "I want to seek balanced solutions that preserve individual privacy, protect industry copyrights, and look to a future in which the music and motion picture industries are ahead of the digital curve in creating new customers instead of alienating them."