DMCA Subpoenas: Technology Outracing Law?

The current legal battle unfolding between Internet service providers (ISPs) and the Recording Industry Association of America (RIAA) is a classic case of technology outracing the best intentions of lawmakers, according to Sarah Deutsch, vice president and associate general counsel for Verizon.

In a case both sides readily agree is ultimately headed to the Supreme Court, Verizon is appealing a January ruling by the U.S. District Court for the District of Columbia requiring Verizon to comply with a subpoena request by the RIAA to reveal the identities of customers who allegedly infringed copyrights on peer-to-peer (P2P) file-sharing systems.

The subpoena was issued through a provision of the 1998 Digital Millennium Copyright Act (DMCA) that allows copyright holders to issue subpoenas that have not been reviewed by a judge and requires no notice to, or opportunity to be heard by, the alleged infringer.

While promptly announcing it would appeal the decision, Verizon also asked the court to issue a stay regarding revealing the names, pending the outcome of the appeal process. The telecom giant lost that decision in April and by June the U.S. Court of Appeals also agreed Verizon had to pony up the identities of the alleged infringers prior to the actual appeal of the underlying decision.

The next round of the controversial case comes on Sept. 16, when the actual appeal will be heard in Washington by the U.S. Appeals Court.

“(The RIAA) has taken an old law and twisted it to fix new business problems,” Deutsch told Internetnews. “A lot of has transpired since the original appeal. We argued then that the decision was subject to abuse and now we have proof.”

The 42-year-old Deutsch is a veteran intellectual property attorney who represented Verizon in the heated negotiations over the passage of the DMCA five years ago. She also was Verizon’s point person during the World Intellectual Property Organization treaty talks that ultimately led to Congress enacting the DMCA.

One of the central issues in 1998 was the liability of ISPs for the possible copyright infringements of their customers. The DMCA gives ISPs liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers’ systems, including complying with an expedited subpoena process for copyright owners who want to pursue legal action against infringers.

Deutsch said the ISPs’ understanding at the time was that they agreed that if an infringement was residing on an ISP’s network, the service provider would agree to remove it from the system after receiving a valid notice from the copyright owner.

Neither side ever anticipated the development and explosive growth of peer-to-peer networks.

“The technology didn’t even exist then,” Deutsch said, noting there’s nothing for an ISP to take down from its systems when file swappers engage in copyright infringement. “The infringement moved from the service providers to the customer’s hard drive.”

Deutsch contends P2P infringement violations shouldn’t be covered by the DMCA subpoena provision since the law only anticipated copyright infringement on service providers’ systems. She is quick to point out that Verizon is in no way endorsing infringement.

“Verizon is not attempting to shield customers who break copyright laws. We are, however, seeking to protect the fundamental privacy and due process rights that should be afforded to our customers and all Internet users,” Deutsch said, adding that Verizon and and other ISPs have always complied with subpoenas obtained through the traditional process of presenting the court with evidence of suspicion of a crime and reviewed and signed by a judge.

D.C. District Judge John Bates, though, didn’t see it Verizon’s way.

“Under Verizon’s reading of the Act, a significant amount of potentital copyright infringement would be shielded from the subpoena authority of the DMCA,” Bates ruled. “That would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish.”

The first indication that the RIAA had a different interpretation from Verizon’s came in August of last year when it went to court to force Verizon to comply with a DMCA subpoena seeking information related to “a computer connected to the Verizon network that is a hub for significant music piracy.” The motion said Verizon was the only entity that could identify the infringer behind the computer.

Since prevailing in June, the RIAA has issued hundreds of DMCA subpoenas to ISPs in what Deutsch characterized as “taking advantage of a procedural delay.” Deutsch said since Verizon turned over the original two names sought by the RIAA, the music industry trade group has hit the company with almost 200 more subpoenas.

Deutsch says the RIAA is engaging in a fishing expedition in order to obtain as many names as possible before the appeals court ruling and that the music industry is “trampling on the privacy rights” of thousands of ISP customers.

“The court’s decision has troubling ramifications for consumers, service providers and the growth of the Internet. It opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts,” Deutsch said after the January ruling. “This case will have a chilling effect on private communications, such as e-mail, surfing the Internet or the sending of files between private parties.”

Other ISPs are now joining Verizon in the legal fray. Earlier this month, Pacific Bell Internet Services, a subsidiary of SBC Communications, filed a lawsuit against the RIAA after it received 200 subpoenas demanding the names, addresses and telephone numbers of the ISP’s subscribers who the RIAA claims are engaging in copyright infringement.

While the RIAA didn’t respond to a telephone request by Internetnews for comment on this story, RIAA President Cary Sherman said after the January ruling, “A federal district court has again affirmed that the law which provides copyright holders with a process to identify infringers is both Constitutional and appropriate.”

Sherman added, “If users of pirate peer-to-peer sites don’t want to be identified, they should not break the law by illegally distributing music. Today’s decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability.”

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