Yet Another Copyright Troll Thinks It's Found The DMCA Subpoena Loophole That Slammed Shut Years Ago

from the that's-not-how-it-works dept

Over a decade ago, when the RIAA first decided to start going after its biggest fans for sharing music online, one of the biggest challenges it faced was — of all companies — Verizon. The RIAA started sending “DMCA subpoenas” to Verizon demanding the names of its customers without filing a lawsuit and without any judicial review. Verizon vigorously fought back, claiming that such subpoenas were unconstitutional and violated its customers’ anonymity rights. After some back and forth Verizon prevailed in the DC Circuit appeals court, and the Supreme Court refused to take the RIAA’s request to hear the case. Since that time, it’s been pretty well established and accepted that you can’t use DMCA subpoenas to get info out of ISPs like that. That’s not what they were ever intended for, and they go against the basic First Amendment protections for anonymity (which allow people to be revealed, but not solely on the basis of a subpoena with no judicial review). That milestone victory by Verizon is what eventually lead the RIAA to actually filing lawsuits against thousands of unnamed fans, as opposed to just getting their info and threatening them.

Anyone who’s spent even just a little bit of time studying copyright law is familiar with this case. A decade ago, it was one of the key copyright legal battles. But, it seems that every few years, some copyright troll lawyers who really have no understanding of copyright law at all “rediscover” DMCA subpoenas and think that they’ve found some amazing loophole that lets them get user info without judicial review. Three years ago, copyright troll Evan Stone was all excited that he’d discovered this amazing subpoena provision, gleefully telling reporters that it was going to be the key to keeping his copyright trolling going. Instead, he got hit with sanctions for abusing subpoena powers.

So it seems a bit bizarre that another operation, “Rightscorp” thinks that it’s discovered some amazing “loophole” to get information on alleged infringers without judicial review (also, odd that Torrentfreak suggests this is a new development, since it also reported on Evan Stone claiming to have found that same “loophole” that doesn’t exist). The TorrentFreak article does ask Rightscorp’s CEO about the Verizon case, and he insists that it was decided incorrectly. That’s a… risky proposition at best. While he’s technically correct that the Supreme Court hasn’t decided this issue, it has been ruled on in both the DC Circuit (that Verizon case) and the 8th Circuit (similar case, similar ruling) and no one has challenged it for a decade. The interpretation of DMCA subpoenas is pretty widely accepted across the board. If this actually got to court, Rightscorp would find it pretty difficult to prevail and upend rulings that have been considered established law for a decade.

But despite the bluster, it seems quite unlikely that Rightscorp really wants to test this in court. Torrentfreak also notes that “Rightscorp is avoiding any of the major Internet providers.” That’s clearly a conscious choice, knowing that the legal teams for these smaller ISPs probably are unfamiliar with the details of DMCA subpoenas and how they don’t apply. Indeed, it appears that Rightscorp’s strategy to date has been somewhat successful, as clueless ISPs are handing over info on their customers that they should not be handing over under the law. I’m wondering if those ISPs, who are violating their customers’ privacy (potentially in violation of their own terms of service), may come to regret that decision (and the fact that their legal departments seem unaware of how DMCA subpoenas work). Also, hopefully a little publicity will help those ISPs to quickly study up on DMCA subpoenas and why they don’t apply here.

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Companies: riaa, rightscorp, verizon

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Comments on “Yet Another Copyright Troll Thinks It's Found The DMCA Subpoena Loophole That Slammed Shut Years Ago”

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Rikuo (profile) says:

“he insists that it was decided incorrectly.”

This isn’t some obscure branch of law that no-one knows about. As the article indicates, it’s been established law for a decade, and the CEO has had this pointed out to him. So why does he think he can do this and simply expect the courts to let it slide? He’s not a judge. If he disagrees with the law, he can call his representatives and try and get them to change it, but he can’t do this and then turn up in court and say “No Your Honour, I shouldn’t be arrested or sent to prison. You see, you folks ruled on this matter wrong in my opinion”.

That One Guy (profile) says:

Re: Re:

What makes you think they would ever let the matter get to court?

Like all parasites of this type, you can bet that if anyone ever put up enough of a fight to the point where the issue would get in front of a judge, they would immediately drop the case, both because scams like this only stay profitable when the targets don’t fight back, and because he couldn’t risk having his little ‘trick’ shot down in court.

Anonymous Coward says:

the difference, from what i read, is that the troll is being given the info by the clerk of the court, rather than having to go to court and get a judge give it (or turn the request down, as the case may be). considering what happened before in this type of case, i would hazard a guess that the clerk of the court who did this (and perhaps was ‘encouraged’ to do so, in the time honoured way?) could be in deep shit! i hope the result is published

That Anonymous Coward (profile) says:

IIRC, and I’m old and forgetful, TF had a story in recent history where it looked like RightsCorp was not making much money from what they were doing.
The business of rights ‘enforcement’ is being able to show a good balance sheet and sell out quickly.

Nearly all of the major players in this enforcement boondoggle have been started by people with ties to the industry, who sell the new snakeoil off and cash out.

Look at the history of DtecNet, that bastion of piracy fighting who demanded Google delist pages on HBO for having stolen content from… HBO. They spun up, acquired by another firm, acquired by yet another firm, and have the contract for 6 strikes.
They say the pirates are stealing from them, I think they should look at the actual losses in paying for smoke and mirrors that do not solve what at its heart is a failure to adapt to what the market wants.

But then these aren’t the brightest bulbs, I’ve jousted online with one of the VPs… his last name is Steele (no not that one) and I wasn’t kind. He denied facts I could prove and dismissed me… like that other Steele (and Stone) did. I like my odds.

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