ACTA fool or: how rights holders learned to stop worrying and love 512's subpoena provisions.

AuthorShanahan, Colin E.
PositionAnti-Counterfeiting Trade Agreement
  1. "2 FAST, 2 FURIOUS" OR INTRODUCTION II. "SOME FOOLS SLIPPED UP AND OVER STEPPED THEIR BOUNDARIES" OR: CURRENT U.S. LAW III. "IT SEEMS THEY WANNA FINGER PRINT ME AND GIMME SOME YEARS" OR: THE ACTA AGREEMENT IV. "YOU'LL BE LIKE LIL. JOHN Q. PUBLIC AND GET A CHANGE OF HEART" OR: WHY NO ACTA NEEDED V. "2 FAST ... ACT A FOOL" OR: CONCLUSION I. "2 FAST, 2 FURIOUS" (1) OR INTRODUCTION

    In retrospect, 1998 was an age of innocence. On television, Dawson's Creek was one of the number one shows, (2) Shakespeare in Love upset Saving Private Ryan to win the Academy Award for Best Picture, (3) and the Britney Spears song 'Baby One More Time' rocketed up the Billboard Charts. (4) The internet was a relatively new feature in many homes and investors poured money into companies expecting that the internet represented a revolutionary new business model. (5) Conventional analog computer modems connected more than 90% of the world's internet users, (6) and new personal computers sold for less than $2,000 with 333 megahertz processors, and 4.3 billion-byte (4.3 giga-byte) hard-drives. (7)

    The year was conspicuous as a harbinger of issues which continue to pervade and provoke debate. The first MP3 players appeared on store shelves. (8) A website scooped print journalists with news of the love affair between Monica Lewinski and President Bill Clinton. (9) Steve Jobs returned to Apple Computers and asked the world to 'think different' as he introduced the first i-product, the iMac. (10) The years waning months witnessed the dawn of Google (11) and the beginning of the googlization of everything. (12)

    During this romantic period, Congress passed the Digital Millennium Copyright Act (DMCA). (13) Thrust into a world of rapidly changing technology, the DMCA sought to implement U.S. treaty obligations and address the problem of copyright infringement in a world of increasingly digital communications. (14) Congress intended the DMCA to serve two primary purposes: (l) to protect the interests of the content industries and (2) to limit the liability of service providers (ISPs) for acts of copyright infringement by customers using the providers' systems or networks. (15) However, by the time the law took effect, the legislation was already largely ineffective against new technologies allowing the piracy (16) of copyrighted works.

    Copyright piracy comes in two flavors: physical piracy and internet piracy. Physical or hard goods piracy entails the creation and distribution of unauthorized physical copies of copyrighted materials. (17) Conversely, internet piracy involves the use of the internet to circumvent technical protection measures or replicate intellectual property. (18) Typically motivated by a drive to impress others without financial gain, individuals share infringing files on peer-to-peer (p2p) networks that span the globe. (19) The simplicity and rampant use of p2p networks to swap infringing files has diminished the value of copyrighted works and an authors' ability to profit. (20)

    User activities on p2p networks have not gone unnoticed by rights holders. (21) With each courtroom victory, the architecture of these p2p systems evolves, frustrating rights holders' ability to halt users from sharing content. (22) Falling outside the DMCA subpoena provisions, the current p2p architecture, bittorrent, (23) requires rights holders file 'John Doe' lawsuits to identify infringers and enforce their rights. (24) While the networks are global, the DMCA and John Doe lawsuits are limited to the jurisdiction of the United States, a lesson rights holders have difficulty understanding. (25)

    Rights holders eventually understood that the DMCA only applied in the United States and hatched a scheme to take U.S. law global. Instead of using existing mechanisms in the World Intellectual Property Organization or the World Trade Organization, (26) rights holders went to their representative, the U.S. Trade Representative. (27) Cloaked as an executive trade agreement, the United States began talks with other nations on a new agreement to address the popularity of p2p networks to share illegal files and the lack of international uniformity. Four years and eight meetings later, the proposed pluri-lateral Anti-Counterfeiting Trade Agreement (ACTA) aims to establish new international standards for enforcing intellectual property rights under the pretense of efficiently fighting the problems of counterfeiting and piracy. (28) The agreement's six chapters build upon existing international rules and seek to address a number of alleged shortcomings in the existing international legal framework. (29) Chapter two of the ACTA outlines a legal framework for enforcing intellectual property rights, addressing a variety of enforcement issues from boarder measures to criminal enforcement. (30) Chapter two also addresses digital enforcement of intellectual property rights. (31) Recognizing the special challenges new technologies pose for enforcement of intellectual property rights, the ACTA seeks to define the roles and responsibilities of internet service providers (ISPs) with specific emphasis on deterring internet piracy. (32)

    This comment argues against the adoption of the proposed Anti-Counterfeiting Trade Agreement. Specifically, that the ACTA provision establishing "[p]rocedures enabling right holders who have given effective notification of a claimed infringement to expeditiously obtain information identifying the alleged infringer" (33) should not extend the current subpoena provisions of 17 USC [section] 512(h) to encompass p2p networks. Part II of this comment describes the current U.S. law, 17 USC [section] 512(h), and the Verizon cases discussing this provision. Part III discusses the reasons why rights holders want the ACTA agreement and highlights some of the recent history on the agreement. Part IV argues that the ACTA agreement should not be adopted, and finally, Part V concludes with a summary of reasons against the ACTA agreement.

  2. "SOME FOOLS SLIPPED UP AND OVER STEPPED THEIR BOUNDARIES" (34) OR: CURRENT U.S. LAW

    In 1998, Congress attempted to balance the competing interests of rights holders, users, and ISPs by creating safe harbors, immunizing ISPs from copyright liability. Subject to certain conditions, 17 U.S.C. [section] 512(a)-(d) provides safe harbors for ISPs against infringement claims, which stem from the transmitting, caching, storing or linking to infringing material. (35) In exchange for these safe harbors, ISPs agreed to expeditiously remove content and disclose identifying information about users allegedly infringing copyrights. (36)

    Section 512(h) outlines the requirements a rights holder must follow to obtain information from an ISP to identify an alleged infringer. The rights holder must file a request with the clerk of any U.S. district court with a proposed subpoena, a sworn declaration, a written communication identifying the copyrighted work claimed to have been infringed and "[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." (37)

    After the adoption of the DMCA, p2p networks burst on to the internet allowing users to swap files in violation of copyright law. (38) As p2p networks developed and flourished, courts had to address whether IsPs would have to comply with the DMCA subpoena provisions if it could not remove or disable access to the infringing material. (39)

    On July 24, 2002, the Recording Industry Association of America (RIAA) sought to compel Verizon Internet Services to identify one of its subscribers who allegedly possessed and was actively trading over 600 copyrighted music files without permission of the copyright holders via the KaZaA p2p network. (40) The RIAA issued a subpoena pursuant to section 512(h) to compel Verizon to identify the alleged copyright infringer and requested that Verizon "remove or disable access to the infringing sound files." (41) Verizon refused and the RIAA commenced litigation (Verizon I). (42)

    Verizon based its refusal on a requirement that the infringing material "reside[s] on a system or network controlled or operated by or for [a service provider]." (43) Verizon argued that the subpoena power of section 512(h) applies only to section 512(c) and that, since its internet connection only service falls under section 512(a), the p2p activities of its users were not subject to section 512(h). (44) Initially, the court found in favor of the RIAA, holding that "the textual definition of 'service provider' in subsection [512](k) leaves no doubt, therefore, that the subpoena power in subsection (h) applies to all service providers, regardless of the functions a service provider may perform under the four categories set out in subsections (a) through (d)." (45) Further, the court found that Congress did not intend to limit the subpoena power of section 512(h) to section 512(c) alone. (46)

    While Verizon I was on appeal, the RIAA served Verizon with a second subpoena based upon similar facts (Verizon II). Refusing to comply, Verizon made alternative arguments in addition to those that had failed in Verizon I. (47) Verizon claimed that section 512(h) violates the case and controversy requirement of Article III of the Constitution, and that section 512(h) violates the First Amendment rights of Internet users. (48) Acknowledging Verizon's arguments as "intriguing, [but] ultimately not persuasive," the court found against Verizon. (49)

    Verizon appealed (Verizon I & II Appeal). In a combined proceeding, the D.C. Circuit Court of Appeals stated that it would not address either of the Verizon II constitutional arguments since "we agree with Verizon's interpretation of the statute [in Verizon I]." (50) Distinguishing Verizon from the Napster decision, (51) the court found that...

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