Court Rejects DMCA Subpoena Process … Again

A federal appeals court rejected for the second time the music industry’s
attempt to use a clause in the Digital Millennium Copyright Act (DMCA) to
bypass the traditional subpoena process in its ongoing legal war against
peer-to-peer (P2P) file swappers.

The Eighth Circuit Court of Appeals in St. Louis and
the U.S. Court of Appeals for the District of Columbia Tuesday afternoon ruled that the
Recording Industry Association of America (RIAA) must use subpoenas reviewed
and signed by a judge before forcing Internet service providers (ISPs) to
reveal the names of alleged music pirates.

The 2-1 majority opinion concluded, “… It is the province of Congress, not
the courts, to decide whether to rewrite the DMCA in order to make it fit a
new and unforeseen Internet architecture and accommodate fully the varied
permutations of competing interests that are inevitably implicated by such
new technology.”

In her dissent, Judge Diana E. Murphy wrote, “[The DMCA subpoena provision]
is of special value to a copyright owner seeking to stop infringement
through conduit service providers. By using the subpoena power to learn the
identity of conduit service subscribers who infringe, copyright holders are
able to take steps to protect their interests, seek compensation for their
misappropriated property, and stop infringement.”

Two years ago, the RIAA began issuing subpoenas issued by a court clerk who
only checked to make sure the subpoena forms were properly filled out.
Normal subpoenas require a judge’s signature and notice to the alleged
infringer. A lower court ruling supported the RIAA’s claim that a provision
in the 1998 DMCA allowed copyright owners to issue the subpoenas without
proper judicial review.

On the basis of that ruling, the RIAA issued more than 3,000 subpoena
requests to ISPs and filed almost 400 copyright infringement actions. Both
Verizon and cable Internet provider Charter Communications appealed the
decision. Verizon won its case
against the DMCA subpoena process in December of 2003.

In October, the Supreme Court rejected without comment the RIAA’s appeal of
the Washington, D.C., decision. Tuesday’s decision reaffirms the ruling for Charter.

“We agree with and adopt the reasoning of the [D.C. court] in Verizon as it
pertains to this statutory issue. Thus, because the parties do not dispute
that Charter’s function was limited to acting as a conduit for the allegedly
copyright protected material, we agree [the DMCA subpoena clause] does not
authorize the subpoenas issued here,” the Eighth Circuit ruled. “As a court
we are bound to interpret the terms of the statute and not to contort the
statute so as to cover the situation presented by this case.”

The Electronic Frontier Foundation (EFF), a San Francisco-based digital
rights group that filed a friend of the court brief on behalf of Charter,
noted the RIAA has already discarded the practice of using DMCA subpoena
requests.

In the several thousand infringement suits filed by the RIAA subsequent to
the Washington, D.C., court ruling, the music industry has taken a more traditional tack in
seeking “John Doe” subpoenas.

“In the ‘Doe’ lawsuits RIAA members are currently filing, a judge oversees
the discovery process and can help protect ISP customers before their names
are revealed,” EFF attorney Wendy Seltzer said in a statement.

In an e-mail response, RIAA spokesman Jonathan Lamy also said the music
trade group has not attempted to use the DMCA subpoena provision since the
D.C. ruling and that “our enforcement efforts won’t miss a beat.”

Verizon and Charter originally argued that the DMCA subpoena only applied in
cases where an ISP stored the copyrighted material on its servers. Because
people using P2P networks store the material on their own hard drives, the
companies said they were exempt from the DMCA subpoena.

Verizon subsequently expanded its case to the actual constitutionality of
the DMCA subpoena, privacy rights violations, the potential dangers of the
subpoena being misused by non-copyright holders and even the future growth
on the Internet.

At press time, Charter had not returned a telephone inquiry for response.