McCain Promises Review of DMCA Subpoena Power

WASHINGTON — The U.S. Senate Commerce Committee had a busy tech day Thursday, passing measures aimed at slowing spam, funding nanotechnology research and rolling back the cross-media ownership rules recently approved by the Federal Communications Commission (FCC).

As if that weren’t enough, Commerce Chairman John McCain (R.-Ariz.) promised to get his committee involved in the digital rights legal dispute between Verizon and the Recording Industry Association of America (RIAA), the principal trade group of the music publishing industry.

The RIAA recently won a court decision forcing Verizon to reveal the names of two subscribers the RIAA suspects of illegally downloading copyrighted songs.

The case involves not whether file swapping is legal, but, rather, an ISP’s responsibilities under the Digital Millennium Copyright Act (DMCA). Verizon’s position is that the RIAA is unfairly using the subpoena power provision of the DMCA. Under the DMCA, subpoenas can be issued without a judge’s signature.

At Thursday’s hearing, Sen. Sam Brownback (R.-Kan.) moved to add an amendment to a Federal Trade Commission reauthorization bill requiring DMCA subpoenas be used only after a copyright holder has filed a civil lawsuit or other court action. Brownback withdrew the amendment after McCain said he would hold a hearing on the matter.

U.S. District Judge John D. Bates ruled in January Verizon must comply with the RIAA subpoena, but the telecom giant appealed the decision. The RIAA, though, insisted that Verizon immediately turn over the names of the alleged infringers. Verizon then sought a stay for revealing the names while the appeal of Bates’ ruling was pending.

Verizon lost the stay decision and turned over the names to the RIAA.

The case originally began last August when the RIAA became the first to invoke the subpoena power provision of the DMCA. Verizon refused to comply with the subpoena, arguing it didn’t think the subpoena request met the circumstances that the DMCA allows for in compelling information in order to protect against piracy. Verizon contended the subpoena related to material transmitted over Verizon’s network, but not stored on it, and thus fell outside the scope of the subpoena power authorized in the DMCA.

Verizon also expanded the legal defense to a constitutional review of the DMCA, particularly the subpoena power provision of the DMCA. Unlike a usual subpoena, which requires some underlying claim of a crime and must be signed by a judge or magistrate, under the DMCA a subpoena can be issued by a court clerk without presenting evidence of a crime being committed.

In ruling in the RIAA’s favor, the court concluded, “that the subpoena power … applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user.”

News Around the Web