A Discussion of the Mechanics of the DMCA Safe Harbors and Subpoena Power, as Applied in RIAA V. Verizon Internet Services

By Dutcher, Trevor A. | Santa Clara High Technology Law Journal, February 2005 | Go to article overview

A Discussion of the Mechanics of the DMCA Safe Harbors and Subpoena Power, as Applied in RIAA V. Verizon Internet Services


Dutcher, Trevor A., Santa Clara High Technology Law Journal


INTRODUCTION

This comment begins with a brief synthesis of basic theories of copyright infringement and a short history of litigation related to Peer-To-Peer ("P2P") file sharing, which is followed by a general explanation of the safe harbors of the Digital Millennium Copyright Act ("DMCA" or the "Act") (1) and a more detailed explanation of the DMCA subpoena power. It then examines and criticizes the analysis and application of the DMCA subpoena power in Recording Industry Association of America v. Verizon Internet Services, (2) and concludes that the holding in Verizon was incorrect because (a) the statutory interpretation applied in that case was faulty, (b) the interpretation given was plainly contrary to the stated legislative intent of the DMCA, and (c) the final holding implicitly endorsed an impermissible violation of the equal protection clause (as incorporated into the due process clause) of the Fifth Amendment.

BACKGROUND

The dawn of the Internet has provided substantial benefits to society as a whole through economic globalization, electronic commerce, online communication, and instantaneous access to a plethora of information. Along the way, however, it has also given rise to substantial legal issues. This article focuses on P2P file sharing technology, its facilitation of copyright infringement, and the battle that the recording industry has faced in trying to enforce its copyrights. The Record Industry easily prevailed over Napster, showing that due to Napster's centralized indexing function, the company was guilty of contributory infringement for the acts of its users. (3) But as distributed architectures became more popular among P2P software vendors, and P2P vendors removed the indexing function from their own servers and pushed it out to the individual users, companies like Grokster and Morpheus were able to escape secondary liability. (4) Such advances in technology left copyright holders without a remedy against the vendors of such applications, and relegated them to lawsuits against the direct infringers, the file traders themselves. The record industry initially pursued these users by use of the DMCA subpoena power, but as is discussed below, plaintiffs are now forced to institute Doe actions against file traders and appear before a judge before any such subpoena may be issued or any subscriber information may be obtained.

I. COPYRIGHT INFRINGEMENT, GENERALLY

To prevail on a claim of copyright infringement, a Plaintiff must show ownership of a valid copyright and that the defendant copied protected expression. (5) Three main theories exist under which a defendant may be liable for copyright infringement: direct infringement, contributory infringement, and vicarious infringement. Direct infringement exists when the defendant himself is engaged in infringing activity. (6) A plaintiff may also sue a party other than the direct infringer on theories of contributory or vicarious infringement. To prevail on either of these theories, a plaintiff must first make a threshold showing of direct infringement by someone other than the defendant. (7) Once that threshold is met, a third-party may be liable for contributory infringement when, with knowledge of the direct infringing activity, he "induces, causes, or materially contributes to the infringing conduct of another." (8) A third-party may be liable for vicarious infringement when "he has a right and ability to supervise the [direct] infringing activity and has a direct financial interest in such activities." (9) There is no requirement that a party have knowledge of the infringing activity to be liable on a theory of vicarious infringement. (10) This is equally true for direct infringement. (11) Hence only contributory infringement requires an element of knowledge; direct and vicarious infringement of copyright are strict liability offenses.

II. THE DIGITAL MILLENNIUM COPYRIGHT ACT, GENERALLY

"The DMCA was enacted [in 1998] both to preserve copyright enforcement on the Internet and to provide immunity to service providers from copyright . …

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