The chairman of the U.S. Senate Judiciary Committee asked copyright holders and Internet service providers on Tuesday to come up with an alternative way to protect songs and movies on the Internet than a provision in the Digital Millennium Copyright Act (DMCA) that allows copyright holders to subpoena the names of file traders without the supervision of a judge.
A day after the music industry announced lawsuits against 261 U.S. residents accused of uploading thousands of songs, Senator Orrin Hatch, a Utah Republican, said he agreed with many of the DMCA objections raised in a Tuesday committee hearing by William Barr, general counsel of Verizon Communications Inc. Verizon has fought subpoenas from the Recording Industry Association of America Inc. (RIAA) seeking the names of four Verizon Internet subscribers accused of heavy song swapping over peer-to-peer networks.
This year, Verizon lost two court rulings on its challenges to DMCA subpoenas, which any copyright holder can request through a court clerk and without a hearing before a judge. At the hearing, Barr raised several objections to the DMCA subpoenas, saying government prosecutors don’t have the same freedom to subpoena criminals that the RIAA has to subpoena suspected copyright violators.
Without a judge to oversee the subpoena, there’s nothing stopping stalkers or pedophiles from claiming to be copyright holders and getting the names of Internet users, Barr said. “Given the sweeping nature of this power, deputizing commercially interested individuals to go out and do this kind of thing, abuses aren’t just possible, abuses are inevitable,” Barr said.
After Barr’s testimony, Hatch asked for bimonthly updates over the next six months from the RIAA, Verizon and other interested groups on whether the subpoenas were being abused and what alternatives Congress might consider. The issue, he said, has not “ripened enough” for Congress to decide whether the DMCA went too far.
But Hatch also said he agreed with much of Barr’s testimony. “We need both of your ideas on how to solve this, because much of what (Barr) says I agree with,” he said to the RIAA and Verizon representatives. “But the RIAA should not have to put up with wholesale pirating of its content.”
Both sides have good points, Hatch added, and Congress should be able to come up with a compromise solution to protect copyrights. “I have no doubt that (the DMCA) is not perfect,” Hatch said. “On the other hand, I think we may be able to resolve some of these problems in a way that would be mutually beneficial.”
RIAA President Cary Sherman and Marybeth Peters, register of copyrights of the U.S. Copyright Office, both defended the DMCA subpoenas. Peters called the DMCA provision “appropriate and constitutional,” and Sherman said the subpoenas were part of a compromise during the drafting of the DMCA that protected Internet service providers from being sued by copyright holders.
Sherman argued that peer-to-peer users should not expect privacy because they commit “privacy suicide” by opening their hard drives to millions of other users. “No one has a privacy right to engage on copyright infringement on the Internet, and illegally sharing or downloading copyrighted music online is not a form of free speech or civil disobedience protected by the First Amendment,” he said.