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.

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."