Court Rejects DMCA Subpoena Process ... Again

A federal appeals court rejected for the second time the music industry's attempt to use a clause in the Digital Millennium Act (DMCA) to bypass the traditional subpoena process in its ongoing legal war against peer-to-peer (P2P) file swappers.

The Eighth Circuit Court of Appeals in St. Louis and the U.S. Court of Appeals for the District of Columbia Tuesday afternoon ruled that the Recording Industry Association of America (RIAA) must use subpoenas reviewed and signed by a judge before forcing Internet service providers (ISPs) to reveal the names of alleged music pirates.

The 2-1 majority opinion concluded, "... It is the province of Congress, not the courts, to decide whether to rewrite the DMCA in order to make it fit a new and unforeseen Internet architecture and accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."

In her dissent, Judge Diana E. Murphy wrote, "[The DMCA subpoena provision] is of special value to a owner seeking to stop infringement through conduit service providers. By using the subpoena power to learn the identity of conduit service subscribers who infringe, holders are able to take steps to protect their interests, seek compensation for their misappropriated property, and stop infringement."

On the basis of that ruling, the RIAA issued more than 3,000 subpoena requests to ISPs and filed almost 400 infringement actions. Both Verizon and cable Internet provider Charter Communications appealed the decision. Verizon won its case against the DMCA subpoena process in December of 2003.

In October, the Supreme Court rejected without comment the RIAA's appeal of the Washington, D.C., decision. Tuesday's decision reaffirms the ruling for Charter.

"We agree with and adopt the reasoning of the [D.C. court] in Verizon as it pertains to this statutory issue. Thus, because the parties do not dispute that Charter's function was limited to acting as a conduit for the allegedly protected material, we agree [the DMCA subpoena clause] does not authorize the subpoenas issued here," the Eighth Circuit ruled. "As a court we are bound to interpret the terms of the statute and not to contort the statute so as to cover the situation presented by this case."

The Electronic Frontier Foundation (EFF), a San Francisco-based digital rights group that filed a friend of the court brief on behalf of Charter, noted the RIAA has already discarded the practice of using DMCA subpoena requests.

In the several thousand infringement suits filed by the RIAA subsequent to the Washington, D.C., court ruling, the music industry has taken a more traditional tack in seeking "John Doe" subpoenas.

"In the 'Doe' lawsuits RIAA members are currently filing, a judge oversees the discovery process and can help protect ISP customers before their names are revealed," EFF attorney Wendy Seltzer said in a statement.

In an e-mail response, RIAA spokesman Jonathan Lamy also said the music trade group has not attempted to use the DMCA subpoena provision since the D.C. ruling and that "our enforcement efforts won't miss a beat."

Verizon and Charter originally argued that the DMCA subpoena only applied in cases where an ISP stored the ed material on its servers. Because people using P2P networks store the material on their own hard drives, the companies said they were exempt from the DMCA subpoena.

Verizon subsequently expanded its case to the actual constitutionality of the DMCA subpoena, privacy rights violations, the potential dangers of the subpoena being misused by non- holders and even the future growth on the Internet.

At press time, Charter had not returned a telephone inquiry for response.

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