In DMCA war, a fight over privacy

With glasses of champagne held high in the air, the RIAA, like-minded trade associations and friendly politicians--including at least one committee chairman--toasted the measure, one section of which permits copyright holders to unmask hundreds of suspected online pirates at a time.

Fifteen months later, the political terrain has noticeably shifted. On Wednesday, the U.S. Senate convened a hearing that explored the privacy problems with the DMCA's subpoena process, and one senator introduced a bill this week to repeal that section of the law.

"I support strong protections of intellectual property, and I will stand on my record in support of property rights against any challenge," said Sen. Sam Brownback, whose staff drafted the proposal. "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 our children."

Brownback, the Kansas Republican who chaired the Commerce Committee hearing, was talking about the attempts by gay porn producer Titan Media to rid the Internet of its copyrighted works, which are typically swapped on peer-to-peer networks with file names such as "Gay-Titan-Pumped_Up-B-rip-Divx-Complete.avi." Under the DMCA, any person who claims to be a copyright holder worried about alleged piracy can unmask the accused infringer without filing a lawsuit.

While Wednesday's hearing didn't precisely equate America's major record labels with the pornography industry, the RIAA nevertheless was thrown on the defensive--a rare position for the well-connected trade association to find itself in. Besides winning passage of the DMCA, the RIAA successfully lobbied Congress to enact the No Electronic Theft Act--which makes peer-to-peer piracy a federal felony--and the Copyright Term Extension Act. Two years ago, the RIAA retained Bob Dole, former senator and presidential candidate, and in July picked Mitch Bainwol, former chief of staff to Senate Majority Leader Bill Frist, to be its new chairman.

On Wednesday, RIAA President Cary Sherman was forced to argue that the DMCA's turbocharged subpoenas cannot be easily exploited by snoops and stalkers. Those are "baseless and desperate arguments," Sherman said. "The RIAA, the copyright community as a whole--and, more importantly, the members of Congress who crafted the DMCA--would never defend or embrace a procedure that makes it easy for criminals to find victims."

Even though Brownback and two other senators--Ron Wyden, D-Ore., and Norm Coleman, R-Minn.--criticized the RIAA's shotgun use of the subpoenas, analysts caution that Washington's view of the law has not radically shifted.

Mike Godwin, technology counsel for the nonprofit group Public Knowledge, said that while the political landscape may have changed in terms of the DMCA, the criticism is still aimed at tweaking rather than rewriting the law. Also, Godwin noted, other members of the Commerce Committee appeared to be skeptical of reopening the DMCA. And last week, Senate Judiciary committee members signaled they were not in a hurry to revisit the law.

"The landscape has not changed so much that if you had a vote taken today, even with all the horror stories of RIAA subpoenas sent to grandmothers and honor students, the vote would come out in favor of seriously altering or removing" that section of the law, Godwin said. "I think what you are getting is some impulse, somewhat more strongly from the Republican side of the aisle, toward some slightly higher level of judicial review and some safeguards and remedies for misuse of process."

Taking aim at individuals
The ongoing controversy over the DMCA subpoenas comes at a crucial time for the trade association. Earlier this month, it filed lawsuits against 261 alleged file swappers, and a federal appeals court heard arguments Tuesday about whether the RIAA has abused the DMCA when gleaning subscriber names from Verizon Communications.

If the RIAA loses the suit and the decision is upheld on appeal--or if Brownback's legislation is enacted--the industry group could be forced to file thousands of "John Doe" lawsuits instead of sending bulk subpoenas. That would be a more expensive strategy that risks additional negative publicity, especially if a file-swapping defendant turns out to be a music industry executive or a relative of a member of Congress.

For its part, Verizon has been stressing the privacy implications of allowing the use of DMCA subpoenas to become more widespread. It's backing Brownback's bill, which requires that a lawsuit be filed before an Internet user be unmasked. (The exact language: "An Internet access service may not be compelled to make available to a manufacturer of a digital media product or its representative the identity or personal information of a subscriber or user of its service"--unless, that is, a civil lawsuit or criminal prosecution is pending.)

A DMCA subpoena "grants copyright holders or their agents the right to discover the name, address and telephone number of any Internet user in this country without filing a lawsuit or making any substantive showing at all to a federal judge," said William Barr, Verizon's general counsel, who also testified on Wednesday. "This accords truly breathtaking powers to anyone who can claim to be or represent a copyright owner--powers that Congress has not even bestowed on law enforcement and national security personnel."

Unlike the mostly left-of-center groups such as the Electronic Frontier Foundation and Consumers Union that have been agitating for years to defang the DMCA, Brownback is an unabashed conservative who in 2000 won a 100 percent rating from the American Conservative Union.

"Recently a federal court has held that copyright owners may use the subpoena to compel Internet service providers to disclose to them the names, addresses and phone numbers of their subscribers suspected of piracy," Brownback said. "This subpoena process includes no due process for the accused ISP subscribers."

Brownback's bill is not limited to amending the DMCA subpoena process. As previously reported by CNET News.com, it generally prohibits the Federal Communications Commission from imposing copy-protection requirements on electronic devices, requires prominent labeling of any "access-controlled digital media product," and preserves the right to resell digital media, provided the seller does not keep a copy.