DMCA SUBPOENA CASE HEATS UP AS RIAA ASKS COURT TO DENY STAY
As expected, RIAA fought back Fri. against Verizon’s efforts to stay decision ordering it to turn over personal information about alleged infringement. Assn. filed motions in U.S. Dist. Court, D.C., opposing request, opposing declaration submitted on ISP’s behalf by Clinton Administration’s chief privacy counselor and starting public relations campaign against ISP. Verizon sought stay Jan. 31, arguing it was necessary to prevent it from having to release its subscriber’s personal information during appeal. Subpoena was issued under Sec. 512(h) of Digital Millennium Copyright Act (DMCA). Verizon has refused to comply with subpoena, saying it would violate its user’s privacy.
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RIAA Senior Vp-Business & Legal Affairs Matthew Oppenheim detailed group’s arguments at news briefing Fri. They include: (1) Verizon pointed to no new evidence and made no arguments not already considered by U.S. Dist. Judge John Bates in his Jan. 21 opinion ordering ISP to turn over information sought by RIAA (CD Jan 22 p2). (2) Constitutional considerations didn’t justify stay. “As this court noted, Verizon previously devoted ‘only two sentences and a footnote to [those] constitutional issues’ and acknowledged that it may not have standing to do even that” RIAA said. (3) Court upholding stay wouldn’t hurt Verizon but would harm RIAA members by allowing every other ISP to avoid responding to DMCA subpoenas where material wasn’t stored on their networks. Massive copyright infringement could take place during 6-12 months appeal takes, Oppenheim said. (4) Verizon’s refusal to comply with subpoena upsets delicate balance Congress struck in DMCA by seeking benefits of statute without responsibilities. (5) Peer-to-peer (P2P) piracy isn’t private conduct subject to protections. “We find Verizon’s self-portrayal as a champion of privacy… disingenuous,” Oppenheim said.
RIAA also submitted declaration by Jonathan Whitehead, its vp-antipiracy counsel, Internet and new media in which he said that last July group served DMCA subpoena on Earthlink Network, which at first said it would comply and then later backed off, based on Verizon’s refusal. On Feb. 5 RIAA issued another subpoena, which Earthlink also failed to honor, Whitehead said.
At same time, RIAA began public relations counterassault on Verizon, which held news briefing late last month to announce its intent to appeal Bates’s decision to U.S. Appeals Court, D.C. (CD Jan 31 p6). Trade association made public several documents at Fri.’s teleconference. One, titled, “Verizon’s Supposed Love for the First Amendment STOPS Where Criticism of Verizon STARTS,” lists “noteworthy excerpts” from ISP’s acceptable use policy. That policy says nothing about privacy, Oppenheim said. Rather, he said, it makes clear that Verizon will release user information in civil or criminal investigations. Moreover, he said, policy forbids subscribers from using service to damage Verizon’s reputation. Verizon has said privately that it would turn over some subscriber information but that it didn’t want expense of numerous subpoenas, Oppenheim said.
Second document seeks to debunk “myths” raised by Verizon, saying ISP is less interested in privacy protection than in giving its customers anonymity “regardless of what they are doing online… The real security and privacy threat” to Verizon’s customers is not DMCA subpoenas, RIAA said, but P2P technologies that allow anyone on the system to search other users’ hard drives.
Peter Swire, who was President Clinton’s chief privacy counselor and now is law prof. at Ohio State U., filed declaration for Verizon arguing that RIAA’s actions amounted to invasion of privacy that could open door to filing of fraudulent or arguable copyright claims. But 3rd document released by RIAA contains comment by U. of Southern Cal. law prof. Erwin Chemerinsky saying online copyright infringers “do not have a reasonable expectation of privacy.” And in court papers filed Fri., RIAA said Swire’s declaration should be stricken because it: (1) Contains ultimate conclusions of fact and law and is speculative. (2) Is composed solely of legal conclusions and “rank speculation” not based on personal knowledge. While Swire’s “’sworn’ declarations may have a place in law review articles and policy debates, they have no place in a court of law and should not be relied on by this court for any purpose,” RIAA said.
Moreover, Oppenheim said, DMCA contains many safeguards to prevent issuance of bogus subpoenas. Subpoena seekers are subject to penalties for perjury, he said. And contrary to Swire’s claims, he said, Sec. 512(h) subpoenas can’t be issued by “bots” sweeping Web for copyright violations. Obtaining DMCA subpoena requires preparation of package of documents that’s then walked to courthouse where it’s reviewed by clerk to ensure it complies with statute, Oppenheim said.
Verizon’s reply to RIAA is due Feb. 11 and stay request is set for hearing Feb. 13