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Wednesday, Nov 25, 2009
Oppenheim points out that the only interpretation of the DMCA's Section 512h that counts, so far, is that of Judge Bates -- and Bates' decision is not even a close call. He sided fully with the recording industry. "The Court disagrees with Verizon's strained reading of the act, which disregards entirely the clear definitional language of subsection h," Bates wrote in his 37-page ruling. (PDF file here.) Verizon's position, Bates said, "makes little sense from a policy standpoint. Verizon has provided no sound reason why Congress would enable a copyright owner to obtain identifying information from a service provider storing the infringing material on its system, but would not enable a copyright owner to obtain identifying information from a service provider transmitting the material over its system ... It is unlikely, the Court concludes, that Congress would seek to protect copyright owners in only some of the settings addressed in the DMCA, but not in others."
Verizon says it will appeal the decision. The stakes are enormous. If you accept that Congress really meant to say what Bates and the RIAA say it meant -- that anyone who suspects a copyright violation can obtain the alleged infringer's identity rather easily and without judicial review -- then the DMCA would seem to be much more unreasonable, and much scarier, than even critics of copyright owners have previously said. According to ISPs, consumer groups, and legal experts, the practical effects of this ruling would be terrifying -- and AOL's silence on the issue despite these consequences "is deafening," says one person in the industry.
"The scope of copyright is infinite in the Internet era," says Peter Swire, a law professor at Ohio State University and the nation's first (and last) chief counselor for privacy at the Office of Management and Budget in the Clinton administration. "Every time you send an e-mail you could say it's copyrighted." The 512h subpoenas, he notes, are "automatic -- no judge is involved. So you will have all these automatic subpoenas where the underlying facts may never have been checked by any human being. You have bots that search for files," and the findings of those bots will simply be passed along to a court clerk, who will order up a subpoena.
These copyright-sleuthing bots -- software programs that scan the Internet for files that "seem" like illegal copies, a determination that can be made on as little evidence as a filename that appears fishy, like "MetallicaSong.mp3" -- are already in use today. They are run by copyright-enforcing firms hired by media companies; everyday, these firms bombard ISPs with requests to pull from their network material that appears to be illegally copied.
Documents Verizon presented in the case show that these bots can sometimes be wrong. For example, the company produced a letter sent to UUNet by MediaForce, a "DMCA enforcement" firm that represents Warner Bros. -- an AOL Time Warner company and a member of the RIAA. The letter demanded that the ISP take down a file that MediaForce said was an infringement of the "Harry Potter" series of books. You can see how the bot might have made that mistake -- the file, which was tiny, was called "harry potter book report.rtf."
"The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong," says Cohn of the Electronic Frontier Foundation. "And if the Verizon decision under 512h is upheld, we'll start seeing the same thing for people's identities, and they're going to be wrong in the same percentage that they're wrong now." That's because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they're providing the court with accurate claims. "They may as well make these things as broad as possible," Cohn says. "There's nothing in the system to make them do otherwise. It's just takedown, takedown, takedown."
Critics of the Bates ruling also worry about intentionally fraudulent copyright claims making it through the system. If you have an entire legal apparatus devoted to "expeditiously" divulging people's private information, there's a chance that the system will become a target of people with something much more sinister than copyright enforcement in mind. "We have seen copyright laws abused by people who have other agendas," Cohn says. "This is a method by which an angry ex-husband can locate an ex-wife, or a process by which stalkers can locate people."
The RIAA's Oppenheim rejects such horror stories. He notes that the DMCA requires people filing for 512h subpoenas to attest to their "good faith" intentions under "penalty of perjury" -- which he says is a strong standard and punishment. Moreover, the judge, Oppenheim says, found the DMCA 512h subpoena process more protective of consumer rights than the process Verizon suggested: that copyright companies file "John Doe" lawsuits against alleged infringers, a scenario that would allow a judge to decide the merits of the case before any personal data was revealed.
One attorney that the RIAA said would back up its view is Douglas Lichtman, a professor of intellectual property law at the University of Chicago Law School. "The cases we should be worried about [with 512h] is where the accusations are not true," Lichtman said. "A case where there's a false accusation, or even worse where there's someone who's using anonymity in an important way -- say where I have a site where I'm making political comments. So the core question is: Does the system as interpreted by [Judge Bates] protect the system enough from false accusations. Verizon says no, the music industry says yes, because the statement is a sworn statement.
"And I have to tell you, I've been torn," Lichtman said. "I've gone back and forth. And I think that the right answer is that a sworn statement under penalty of perjury provides a strong protection." But Lichtman also said that he felt "reasonable minds" could disagree about the consequences of the ruling.
