Senators scrutinize copyright law

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In a sign that lawmakers are finally getting concerned about the entertainment industry’s interpretation of the 1998 Digital Millennium Copyright Act, three more senators have spoken out against using the Act to obtain the names of alleged file traders.

At issue is a provision in the DMCA that permits copyright holders to subpoena the names of these supposed copyright violators without first getting a judge’s order.

Back on Sept. 9, Senator Orrin Hatch (R-Utah) chairman of the Senate Judiciary Committee, asked both ISPs and the Recording Industry Association of America  (RIAA) to work out a compromise on the subpoenas and report back to him. During the Sept. 27 hearing in the Senate Commerce, Science and Transportation Committee, Senators Sam Brownback (R-Kan.), Ron Wyden (D-Ore.) and Norm Coleman (R-Minn.) spoke out directly against the use of the DMCA to force ISPs to turn over the names of alleged file traders. Brownback even suggested that the DMCA’s subpoena power gives the RIAA and other copyright holders more clout than the U.S. Department of Justice, which must still get a judges order to subpoena terrorist suspects.

According to a news report by the IDG News Service (see link below), this issue was also raised at the hearing by William Barr, vice president and general counsel for Verizon Communications. The ISP has been trying to resist RIAA subpoenas of its Internet subscribers. “Congress hasn’t given this power to the federal government to investigate terrorism,” Barr says in the article. “Why should the record industry – private citizens – have this unfettered subpoena authority to reach the most sensitive information people have?”

Senator Barbara Boxer (D-Calif.) tried to muddy the issue by questioning how Verizon and fellow ISP SBC could object to the subpoenas on privacy grounds when they already share customer data with their business partners. “It seems to me you’re trying to protect privacy of theft,” Boxer said to Barr at the hearing.

I think it’s time to write a letter to Boxer (who happens to be my Senator) and explain that just because a company may choose to share data, doesn’t mean that customer information can be forcibly extracted from them in the subpoena process without due process and judicial review. There is no reason to ignore constitutional rights to anonymity just because one industry is particularly powerful. The privacy of individual users should not be violated until a court can review the charges.

The very fact that legislators are looking into the DMCA at all shows how far privacy issues have moved into the forefront of the debate since the Act was passed in 1998. Back then, few members of Congress would speak out against the bill on behalf of consumers and software developers.

At the hearing, Coleman, chairman of the Senate Governmental Affairs Committee’s Permanent Subcommittee on Investigations, said his subcommittee would review the DMCA subpoena process and look for compromises. “I don’t believe that aggressively suing offenders will be sufficient to deter the conduct of an entire generation,” he said.

Brownback has taken the issue a step further by introducing legislation that would require copyright holders to file a civil lawsuit before they could get information on suspected copyright infringer. This is a much tougher requirement than getting an order from a court clerk to force an ISP to turn over the name.

But Brownback lowered himself into the entire sordid, P2P pornography debate by pointing out that the operator of a men’s gay porn site TitanMen.com filed a subpoena in July to obtain the names of 59 SBC Internet subscribers who allegedly swapping Titan’s adult content on P2P sites. Brownback said he could not 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.”

There is no evidence that Titan Media is using the DMCA to get the identities of children and send them gay porn. Keith Webb, vice president of the Io Group sent the IDG News Service an angry riposte asserting that users who didn’t want their names associated with the theft of “legal adult material” should stop offering it for trade on their home machines and then trying to hide behind their ISPs. “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,” Webb said in an e-mail to the online news service.

Oy vey. RIAA president Cary Sherman is of course defending the DMCA subpoena process that has been so useful to his organization in its 261 lawsuits against alleged file traders. Sherman is claiming that filing lawsuits against each alleged infringer would expose them to even more invasive investigations and burden federal courts.

But Senator Wyden put a fine point on the issue asking Sherman just how many lawsuits the RIAA intended to file and if he actually thought it would improve customer relations.

“Tell us, if you would, how long you see this litigation derby going on,” Wyden  asked 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 could not give an estimate of how many lawsuits the RIAA intended to file.