More senators question DMCA subpoenas

Lack of controls gives RIAA too much latitude in gaining user information

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.