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List:       dmca-discuss
Subject:    [DMCA_Discuss] In DMCA war, a fight over privacy
From:       Vladimir Katalov <vkatalov () elcomsoft ! com>
Date:       2003-09-22 9:07:21
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In DMCA war, a fight over privacy
Last modified: September 18, 2003, 9:50 AM PDT
By Declan McCullagh 
Staff Writer, CNET News.com

http://news.com.com/2100-1027_3-5078609.html
           
WASHINGTON--On May 16, 2002, top executives from the Recording
Industry Association of America gathered to celebrate the Digital
Millennium Copyright Act, a controversial law that Congress enacted in
hopes of curbing online piracy.

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.

_______________________________________________


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