Cybercrime 8: DMCA Litigation Process
Per usual: IANAL/TINLA.
It’s finals time, which means I need to start thinking and synthesizing the Cybercrime material. You’ve already seen that with a bit of flurry of recent activity. That flurry actually lead to a record-breaking April for OSP in terms of site hits.
Today we are going to talk about copyright. There is a lot to say about copyright, and we’ve been discussing it some in the G+ Creative Commons Music Community. Additionally, Brian recently returned to the Music Manumit Lawcast with an article on copyright registration.
Since this is in the Cybercrime series though, today I specifically want to discuss copyright on the Internet. Due to the way the Internet works, Congress has had to cut out specific exceptions for Internet intermediaries. It is one of those specific defenses I will write briefly about in the rest of the post.
Generally speaking, we try to keep Open Source Playground understandable and relevant to the average technology enthusiast. However, today’s topic is admittedly a bit esoteric. The general topic of Internet intermediaries I don’t think is particularly esoteric and is an important concept for any startup Internet company to understand. Specifically, I am going to be focusing on how a plaintiff finds the appropriate defendant before filing a copyright suit.
Today’s topic is one a hope none of you ever need and more so than a lot of other topics, if an issue comes up, you need to speak with an attorney. It’s easy enough to get broad copyright principles from me or from Mike Masnick over at Tech Dirt, but once it’s time to go to court, you need to speak with a professional.
You might be thinking, “I don’t believe in copyright, I believe in sharing” and that’s great. We basically agree with you (if recipes aren’t copyrightable, it doesn’t make any sense for computer programs to be copyrightable, but nonetheless, they most certainly are). However, remember that the GPL is a copyright license. If individuals want to enforce the GPL, then they need to go through the normal copyright litigation procedures.
With that massive introduction to the topic out of the way, here’s Week 8′s reading:
- MGE UPS Systems, Inc. v. GE Consumer and Indus., Inc., 622 F.3d 361 (5th Cir. 2010)
- Egilman v. Keller & Heckman, LLP, 401 F.Supp.2d 105 (D.D.C. 2005)
- Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004)
- Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003)
I am primarily going to be focusing on Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). First off, let me just note that the Verizon is the good guy in this case. Leave it to the RIAA to make Verizon out to be a good guy.
In this case, Verizon is attempting to protect its users (and, incidentally, their bottom line). It does so through the DMCA, or more specifically, 17 USC 512(h), which says:
(h) Subpoena To Identify Infringer.—
(1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.(6) Rules applicable to subpoena.— Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.
The DMCA is oft-talked about in the tech press, and with good reason. Both the 512 series and the 12xx provisions have profound implications for copyright law in the US. However, this particular provision doesn’t get a lot of attention because it doesn’t criminalize anything and it doesn’t explicitly grant any exceptions. It is purely about process.
It turns out the provision is exceedingly important for privacy (and incidentally, for keeping ISPs from having to field subpoenas). The key provision here is 512(h)(4) which points to 512(c)(3)(A). Unfortunately for the RIAA, part of 512(c)(3)(A) says
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Since Verizon doesn’t store the material, it is impossible for them to locate it. Well, they might be able to sniff the location and then crack any password protection of the storage location, but that would violate the CFAA.
The case, as printed out through Westlaw is 8.5 pages, so it’s not particularly long. It is long enough though that I don’t think I can run through the entire opinion here. I do want to point out one thing before moving on though. As is the case with most (all?) statutes, the section is not clear without reading the definitions, which are listed in 17 USC 512(k). However, for this case, it does not matter what the definition of a service provider is because even if Verizon is a service provider based on the definition, they still cannot locate the material. I point this out just to leave you with the cautionary note that words in the law do not necessarily mean what they mean in normal speech. Additionally, the same words can mean different things in different statutes (and often do). If you want to figure out the law, ALWAYS read the applicable definitions.
If you would like to know more about the DMCA, you can check out the articles Brian and I wrote over at the Lawcast.
Of course, if you want to avoid the RIAA, ASCAP and the rest of the MAFIAA, just listen to, watch and support Creative Commons music and video.
As usual, if you have any thoughts on future coverage, please let me know. I could easily do case notes on each of the cases, if people would like that. I can also cover more current issues than we have been doing thus far.
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