More senators question DMCA subpoenas

WASHINGTON - Three more U.S. senators have questioned a provision in the 1998 Digital Millennium Copyright Act (DMCA) that allows copyright holders to subpoena the names of alleged file traders without first getting a judge's permission, with one suggesting that the DMCA subpoenas give copyright holders more power than U.S. law enforcement agencies have to seek information on terrorists.

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Senators Sam Brownback, a Kansas Republican, Ron Wyden, an Oregon Democrat, and Norm Coleman, a Minnesota Republican, criticized the use of the DMCA subpoenas to obtain names of alleged file traders from Internet service providers (ISPs) during a hearing in the Senate Commerce, Science and Transportation Committee Wednesday. On Sept. 9, Senator Orrin Hatch, a Utah Republican and chairman of the Senate Judiciary Committee, asked the RIAA and Internet service providers to work on a compromise and give him bimonthly reports.

Brownback suggested the DMCA subpoena provision gives the Recording Industry Association of America Inc. (RIAA), which has sought more than 1,600 such subpoenas in recent months, more information-gathering power than the U.S. Department of Justice has. He questioned why the RIAA and other copyright holders should be able to get a subpoena without a judge's approval when Justice Department investigators generally need to go to a judge to subpoena terrorist suspects.

"Congress hasn't given this power to the federal government to investigate terrorism," said William Barr, vice president and general counsel for Verizon Communications Inc., which has been fighting RIAA subpoenas of its Internet subscribers. "Why should the record industry -- private citizens -- have this unfettered subpoena authority to reach the most sensitive information people have?"

Critics of the DMCA subpoenas say they could be used by stalkers, rapists or identity thieves pretending to be copyright holders. Other senators said the RIAA needs a way to protect its intellectual property from file-trading thieves, and Senator Barbara Boxer, a California Democrat, questioned how Verizon and SBC could object to the subpoenas because of concerns about their customers' privacy, while turning around and sharing customer information with dozens of partners.

"I see just a little bit of hypocrisy," Boxer said. "I find this kind of holier-than-thou deception from SBC and Verizon of interest because they share so much information with their hundreds of (partners) and don't think two licks about it.

"It seems to me you're trying to protect privacy of theft," she said to Barr.

Brownback on Tuesday introduced legislation that would require copyright holders to file a civil lawsuit before obtaining information on suspected infringers instead of obtaining an order from a court clerk for an ISP to turn over the name. At Wednesday's hearing, he noted that adult content provider Titan Media filed a subpoena in July to obtain the names of 59 SBC Internet subscribers who allegedly were trading Titan's adult content on peer-to-peer services.

"I support strong protections of intellectual property," Brownback said. "But I cannot in good conscience support any tool such as the DMCA information subpoena that can be used by pornographers, and potentially even more distasteful actors, to collect the identifying information of Americans, especially children."

An official with Titan Media owner Io Group Inc., operator of TitanMen.com, said the company would prefer to sue owners of the peer-to-peer networks, where its content has been traded, but that's proved difficult.

"If users do not want their names and identities associated with the theft of legal adult material, then they should stop trading it and making it freely available from their home computers," said Keith Webb, vice president of Io Group, in an e-mail response. "Once they get caught, they can't scamper behind the coattails of their ISP to try and avoid responsibility for their actions. Titan Media will not idly sit by and watch while hundreds of thousands of users steal our legal and copyright-protected property and make it freely available to anyone, including children."

RIAA president Cary Sherman defended the subpoena process, saying the subpoenas and the 261 lawsuits his organization filed against alleged music uploaders Sept. 8 are one tool in an effort to educate Internet users that downloading copyrighted music is illegal.

Verizon and SBC want Congress to require the RIAA to file a lawsuit against each alleged copyright infringer, identified through IP addresses, and obtain a judge's order for the ISP to turn over the downloader's name, instead of allowing the DMCA subpoenas, which require no judge's oversight. But filing lawsuits against unnamed downloaders, as Verizon and SBC suggest, would expose their customers to more invasive investigations than the DMCA subpoenas, Sherman said.

"Their alternative to the DMCA process ... would force copyright owners to sue ISP customers first, and ask questions later," Sherman said. "That strikes me as one of the least consumer-friendly options imaginable, not to mention the significant and unnecessary burden placed on our nation's already overburdened federal courts."

But Oregon's Sen. Wyden questioned the RIAA's current approach, saying it could turn off the recording industry's customers. "Tell us, if you would, how long you see this litigation derby going on," Wyden said to Sherman. "How many suits will be enough? How many kids and grandmothers are going to be chased down? Will 5,000 suits send a message?"

Sherman said he couldn't give an estimate of how many lawsuits will accomplish the RIAA's goal, but he said the lawsuits were effective in getting the RIAA's message out. "Up until recently, people didn't even think twice about downloading music, and didn't even worry about whether it was right or wrong, legal or illegal," he said. "The result of these lawsuits -- something we did not want to do and something we did not take lightly -- has been to inform more people in the space of a week that this conduct is illegal than anything we have, notwithstanding a multiyear education program."

Alan Davidson, associate director of the Center for Democracy and Technology, told the committee a handful of small changes to the DMCA subpoena law would clear up most privacy concerns. Davidson asked the Senate to consider changes that would allow people who are targets of the subpoenas to be notified and warned that their personal information was being requested, and he asked for penalties for misuse of the information gained with the subpoenas. He also suggested that Congress should ask for an annual report on the number of subpoenas requested and granted.

"(The subpoena process) is rife for abuse, to reveal sensitive information online, to blacklist alleged infringers, to embarrass people, to market to them, or even for criminal purposes," Davidson said.

Sherman didn't answer directly when Brownback asked if the RIAA would accept some changes to the DMCA subpoenas. He noted that the subpoena provision was part of a compromise ISPs accepted during the 1998 passage of the DMCA in return for not being held legally liable for copyright infringement happening on their networks.

Coleman, chairman of the Senate Governmental Affairs Committee's Permanent Subcommittee on Investigations, also said his subcommittee would review the DMCA subpoena process and look for compromises that can help copyright holders protect their property. "I don't believe that aggressively suing offenders will be sufficient to deter the conduct of an entire generation," he said. "The goal of the entertainment industry should be to create loyal, long-term customers, not engage in short-term strategies that ... make examples of folks who may or not have known they engaged in improper behavior."