PAC BELL SUIT CONFIRMS FEARS ABOUT DMCA SUBPOENAS, VERIZON SAYS
Verizon Internet Services’s warnings about the dangers of RIAA’s sweeping Digital Millennium Copyright Act (DMCA) subpoena blitz have been borne out, Verizon Vp-Assoc. Gen. Counsel-Internet Policy Sarah Deutsch said Fri. Pacific Bell Internet Services’ filing of a lawsuit last week challenging the issuance of hundreds of DMCA subpoenas and/or DMCA notices by RIAA, MediaSentry and Titan Media prove Verizon’s point -- so far unsuccessfully argued in federal court in D.C. -- that the DMCA Sec. 512(h) subpoena process is unconstitutional and will be abused, Deutsch told us. “These are not hypothetical arguments,” she said.
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Titan Media, one defendant in Pac Bell’s suit (CD Aug. 1 p12), is a “hard-core gay pornographer” claiming to be a copyright owner, Deutsch said. Moreover, she said (and the Pac Bell complaint alleges), RIAA served more than 200 subpoenas on SBC, which Pac Bell said was a trademark, not a corporate entity, of SBC Telecommunications Inc., a Pac Bell affiliate but not an ISP. That’s more subpoenas than have been served on Verizon, Deutsch said, but Verizon warned that the recording industry would turn the process into a paper mill. In fact, she said, it had been reported that the U.S. Dist. Court, D.C., had had to shift personnel from other offices to help process the voluminous subpoena requests. All this is happening just a few weeks after the D.C. court ordered Verizon to disclose the names of several alleged infringers over the company’s strong protest (CD June 5 p11), she said.
While the core issue is the same, there are significant differences between Verizon’s case and Pac Bell’s, an SBC spokesman said. First, he said, the ruling against Verizon was made in a limited test case involving very few DMCA subpoenas. Now, he said, “the floodgates of subpoenas under the DMCA have been opened.” RIAA by its own admission has requested more than 1,000 subpoenas, and SBC has received more than 200.
Moreover, SBC said, Pac Bell’s suit involves people outside the recording industry. It shows that anyone claiming a copyright can have a subpoena issued demanding private customer information, he said, which makes this a broader issue of misappropriation of the subpoena power. The spokesman said Pac Bell’s action also included allegations against MediaForce, a service that sniffs out possible copyright violations and turns them over to copyright holders. SBC has received thousands of notices from MediaForce and fears it soon will begin issuing large numbers of DMCA subpoenas. Finally, he said, Pac Bell’s suit seeks answers to basic procedural questions related to peer-to-peer (P2P) technologies not addressed in the Verizon case or the DMCA.
The Pac Bell complaint asks the court to declare that: (1) The DMCA doesn’t permit or authorize the issuance of Sec. 512(h) subpoenas to companies acting solely as a passive conduit for communications reacted, controlled and stored by others. (2) The relevant provisions, even if it does permit such actions, are unconstitutional as applied outside the context of a pending lawsuit. (3) RIAA and others, if the subpoenas are authorized, must compensate Pac Bell for the substantial costs involved in complying with them. (4) The subpoenas can be issued only by the court for a district in which a valid custodian of the records resides. (5) The subpoenas must be properly served under federal rules of civil procedure. (6) Multiple demands for individual subscriber information can’t be grouped in one subpoena. (7) The demand for e-mail addresses is overly broad and not authorized by statute. (8) Compliance deadlines must be given to allow subscribers to be notified and given a meaningful opportunity to defend their rights in court.
The complaint raises policy issues about how the DMCA subpoena process should work in practice, assuming it applies to P2P subpoenas, said James Halpert, gen. counsel, Internet Commerce Coalition. Its inclusion of Titan as a defendant also creates an “interesting new wrinkle” on privacy, he said. Subpoenaing an ISP to identify a user trading gay Internet files could affect how that person is viewed by others who may not have known of his interest, Halpert said. The question whether the DMCA supercedes federal rules of civil procedures on which court has venue to order a subpoena also is an unclear area of the law, Halpert said.
One copyright owners’ representative disputed claims that Pac Bell’s case differed from Verizon’s. The only argument that appears to distinguish it is the contention that subpoenas must be issued from the court in whatever district the guardian of relevant records resides, instead of in D.C., the source said. But such cases are between ISPs and copyright owners, not individual file-sharers, the source said, and Pac Bell is perfectly capable of appearing in court in D.C.
Pac Bell’s filing in Cal. appears to be nothing more than an exercise in forum-shopping, the copyright owners’s representative said. The source acknowledged that’s speculation, but said the choice of Silicon Valley appeared aimed at obtaining a ruling contrary to the D.C. court’s. In fact, the copyright official said, it wouldn’t be surprising if the lawsuits were part of an orchestrated effort by telecom companies.