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.