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RIAA Subpoenas and the Final Failure of the DMCA
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By Ed Foster, Section The Gripelog
Posted on Sun Aug 17, 2003 at 07:37:49 PM PDT
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I think one point about the RIAA’s (Recording Industry Association of America) attempt to sue everyone in sight needs to be emphasized. In filing thousands of subpoenas trying to force ISPs to identify customers who may have pirated music, the RIAA has demonstrated one thing beyond a doubt: the DMCA (Digital Millennium Copyright Act) has absolutely and completely failed in its purpose.
While it’s generally recognized that the DMCA is badly flawed, most of the negative commentary has focused on the law’s ban on circumventing copyright protection systems and the resulting abuses of fair use principles. But there was a second major section (Section. 512) that the DMCA added to the Copyright Act called “Limitations on liability relating to material online.” DMCA defenders have often cited that section as being the section of the law that works, an assertion that has now been proven false by the RIAA.
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Section 512 basically says that online service providers will not be held liable for copyright infringement by their users as long as they respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing …” when notified a copyright holder. The original intent of Congress was to prevent ISPs and other Internet services from having to police their users’ content for copyright infringement, and in theory it seemed a reasonable way to protect copyright holders while not unduly burdening fledgling Internet businesses.
In practice, of course, it’s turned out to be anything but reasonable. DMCA “takedowns” based on flimsy or totally bogus claims of copyright infringement are a daily occurrence. And not just because of the RIAA, since movie studios, game console manufacturers, pornographers and spammers have also learned what a powerful tool the DMCA can be in the hands of those with a little knowledge of the law and no scruples. Small ISPs and web hosting services often find the need to respond to DMCA takedown orders an enormous burden, particularly if they have any sense of responsibility for their users.
All the RIAA has done with its out-of-control legal attack is to take the DMCA takedown process to its logical but absurd conclusion. Now even the biggest broadband suppliers like SBC and Verizon are saying they can’t be saddled with the substantial costs involved in responding to all the subpoenas they’re receiving from RIAA. And, as a recent lawsuit filed by SBC-subsidiary PacBell against the RIAA and several adult entertainment operations makes clear, it's not just the recording industry that can use these subpoena tactics to the detriment of ISPs and their users. After all, copyright holders come in all manner of life forms, including some very low ones.
Ultimately, we will probably owe the RIAA a debt of thanks for what it’s done here. DMCA or no DMCA, it’s clear the RIAA legal strategy will itself ultimately fail to thwart peer-to-peer technology. But in forcing ISPs to take sides against them -- not to mention millions of Americans who must worry if they or their children are one of the subpoena targets -- the RIAA is actually helping highlight the DMCA’s failure. Even Congress must soon come to understand how badly its purposes have been perverted by the Digital Millennium Copyright Act and those who make use of it.
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