ACLU Steps Into DMCA Subpoena Controversy

WASHINGTON — While a Senate subcommittee prepares to hear testimony Tuesday from LL Cool J and Chuck D on the merits of the subpoena provisions of the Digital Millennium Copyright Act (DMCA), the American Civil Liberties Union (ACLU) and a Boston law firm went to court Monday questioning the constitutionality of the controversial power of the DMCA.

Representing a Boston college student, the ACLU claims the music labels should not have the authority to strip Internet users of anonymity without allowing them to challenge the order in court.

“We’re not saying the recording industry shouldn’t go after file sharers, only that they must do so in a way that’s fair,” said Christopher Hansen, a senior staff attorney with the ACLU, which filed the lawsuit together with the ACLU of Massachusetts and the Boston law firm Prince, Lobel, Glovsky & Tye.

On Sept. 8, the Recording Industry Association of America (RIAA) filed 261 infringement suits with all of the names obtained through more than 1,600 DMCA subpoenas issued by the RIAA, which allow copyright holders to issue subpoenas to Internet service providers (ISPs) demanding the name, address and telephone numbers of ISP subscribers suspected of illegally downloading copyrighted material.

Unlike usual subpoenas, DMCA subpoenas can be filed prior to any charges of infringement, are not subject to a review by a judge, and requires no notice to, or opportunity to be heard by, the alleged infringer.

“There are lots of reasons why people need anonymity online and why it should not be so easy to lose,” Hansen said. “If the recording industry can uncover your identity simply by claiming that a copyright violation has occurred, then the Chinese government can use the same tool to find out the name of a dissident, and a batterer can use it to find out the address of a domestic violence shelter.”

The ACLU’s lawsuit says the DMCA subpoena provision is “totally lacking in procedural protections,” making it “an invitation to mistake and misuse.”

David Plotkin, an attorney with Prince, Lobel, Glovsky & Tye, said, “The recording industry cannot simply demand our client’s identity without first complying with constitutional requirements. Our system mandates that people accused of wrongdoing, be it criminal violations or copyright infringement, be provided due process of law. That is all our client seeks here.”

While the lawyers prepare their legal briefs, actor and two-time Grammy award winner LL Cool J will testify alongside RIAA Chairman Mitch Bainwol and Motion Picture Association President Jack Valenti against the practice of file-sharing at a Senate Permanent Subcommittee on Investigations. Public Enemy frontman Chuck D will testify on the opposite side of the issue having come out in the past in favor of finding positive business models that would include the use of legal file-sharing.

“We have strived to provide a fair and balanced and hearing in critical issues facing the entertainment industry in America, and around the world,” Sen. Norm Coleman (R.-Minn.), chairman of the subcommittee said. “I’ve included the motion picture industry in this hearing, as well as those who are in the retail end of the business to get their point of view on the impact of technology and illegal file sharing. In addition, I’m also eager to gain the perspective of those who have received subpoenas, as well as the perspective of artists, such as LL Cool J and Chuck D, on what the future holds on this issue of technology, file sharing and the entertainment industry.”

The ACLU lawsuit comes on the same day the RIAA announced another 63 people have settled copyright infringement suits with the music industry. All were accused of illegally downloading more than 1,000 songs through peer-to-peer (P2P) networks.

The amount of the settlements were not disclosed by the RIAA, but an earlier settlement with the parents of a 12-year-old accused of illegally downloading music files was $2,000.

Monday’s announcement brings the total number of settlements to 64. Of the total settlements, according to the RIAA, 12 were pre-litigation, meaning individuals who were identified as offering significant amounts of music files and had their information subpoenaed from their ISP, but not had been sued.

Additionally, the RIAA said it received 838 affidavits for its “Clean Slate” program, which offers amnesty to P2P network users who voluntarily identify themselves and pledge to stop illegally sharing music on the Internet. The amnesty program has been attacked as misleading and in California, a lawsuit has been filed claiming the program is a deceptive trade practice.

One suit against a 66-year-old Boston grandmother, accused of downloading more than 2,000 songs, was dropped when it was disclosed her only computer is a Macintosh, which is incapable of running the P2P network software she was accused of using to pilfer such songs as rapper Trick Daddy’s “I’m a Thug.”

Another suit is being contested on the constitutionality of DMCA subpoenas. The attorney for a New York woman known only by her online name of “NYCfashiongirl,” claims the RIAA violated state and federal laws in securing her online name and IP address through its search P2P networks looking for possible music pirates.

Verizon and SBC are also challenging the constitutionality of the subpoenas. On Sept. 16, the three-panel U.S. Court of Appeals for the District of Columbia heard arguments in the case that both sides predict will eventually make its way to the Supreme Court.

Also on Monday, a new P2P industry trade group issued a code of conduct for its members. P2P United, whose members include the popular file sharing networks Grokster and Morpheus, said the code requires member companies to warn customers about illegal file-sharing.

The code of conduct also mandates that members provide an easy way to uninstall P2P software and to help parents find ways to keep children from engaging in file-swapping.

Additionally, P2P United called on Congress to appeal the DMCA subpoena power.

“It’s long past time for the ‘Tyrannosaurical’ recording industry to stop blaming — and suing — its customers to cover up the industry’s own glaring failure to adapt yet again to a new technology — one that should already have been making millions for it and for the average artist whom it still hypocritically claims to speak for,” said Adam Eisgrau, P2P United’s executive director.

The RIAA was unimpressed with the effort.

“It is refreshing to see that P2P United is acknowledging that their members should be more active in educating their users about the consequences of illegal file sharing that is rampant on their networks as well as the other risks these networks pose to personal privacy and security,” the RIAA said in a statement. “But, let’s face it, they need to do a whole lot more before they can claim to be legitimate businesses.”

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