With passage last year of the Digital Millennium Copyright Act (DMCA), many hoped the once-heated dispute between content owners and service providers would be settled. Those hopes have dimmed, however, after Star Wars producer Lucasfilm sent ISPs the letter, which provides a much broader reading of the new law than is generally held by online professionals.
"The information set out below provides you with the notice required under the DMCA with regard to unauthorized electronic files relating to the upcoming film Star Wars: Episode I--The Phantom Menace," the letter contends. It goes on to list Lucasfilm trademarks and also provides a photocopy of a copyrighted article from CNN Interactive about movie piracy on the Net.
"Extremely prompt action will be required in order to avoid the spread of infringing materials," adds the letter, which was sent to about 700 ISPs that were listed in a public database, according to the author.
The explosion in popularity of the Net means that users can make and distribute near-perfect copies of music, movies, and other copyrighted material with the click of a mouse. Content owners said that ISPs should shoulder the responsibility for preventing copyright abuse because their systems make it possible. ISPs, meanwhile, say forcing them to police the activities of their users will hamper growth of the Net. The DMCA was designed to bridge the competing interests.
The provision, which was signed in to law in October 1998, contains a number of "safe harbor" clauses that protect an ISP from being prosecuted for the infringement of its subscribers. Before being sued, an ISP must fail to take any action after being notified in writing of a specific violation and its exact location on the Net. ISPs that agree to be listed in a public database and try in good faith to halt the infringement are immune to legal action.
The note from Lucasfilm has left a sour taste in the mouths of more than a few ISP representatives, who say that, contrary to the claims, the letter does not comply with notice requirements under the DMCA.
"The law is very clear that you do not send ambiguous, threatening letters to ISPs saying they may be infringing a copyright," said Dave McClure, executive director of trade group the Association of Online Professionals.
Terrence McMahon, an attorney at Orrick Herrington & Sutcliffe who sent the letter on Lucasfilm's behalf, disagreed that it failed to meet the DMCA's requirements for notifying an ISP.
"The intent of the letter is to put the Internet community on notice that the industry and law enforcement are not going to tolerate these illegal files being distributed on the Internet," McMahon told CNET News.com. "We believe that the Internet community is being put on notice [and that] we're within the bounds of the law."
McMahon's sentiments have critics bristling. Among them is Eric Goldman, an attorney who specializes in Internet law at Cooley Godward, who said the letter appeared to misrepresent the requirements spelled out under the DMCA.
"I have a great deal of reservation about lawyers who send out nasty-grams under the guise of national authority when in fact the authority is questionable," said Goldman. "There's a lot of guerilla terrorism that is used by the copyright owners to scare others into behaving in certain ways that would not be derived from enforcement."