The DMCA Subpoena Power: Who Does It Actually Protect?


After years of legal maneuvering and courtroom skirmishes, the lines in the war between copyright holders and online copyright infringers have been clearly drawn. This conflict, which is poised to erupt in courts across the country, began decades ago with the birth of the Internet, which gave rise to a previously unparalleled opportunity for the dissemination, sharing, and enjoyment of every conceivable form of human expression. In addition to the benefits it has provided, the Internet also has given rise to copyright infringement on a global scale through the unauthorized posting and sharing of digital files. After years of unsuccessfully battling Internet service providers (ISPs) and file sharing network software distributors, such as Napster and KaZaA, the war against digital copyright infringement may end soon, now that copyright holders are finally taking action directly against the actual infringers. To bring such actions against individual infringers, copyright holders must serve subpoenas on the ISPs pursuant to the Digital Millennium Copyright Act [hereinafter DMCA] to obtain the infringers’ subscriber information. Before the real conflict concerning copyright infringement can be fought in the courts or over settlement tables, various issues with the intermediate subpoena process must be resolved. First, does the subpoena authority granted by the DMCA put too much power into the hands of copyright owners? And even more importantly, does this subpoena power strip from alleged infringers any defense that they may have against its abuse? Unless an appropriate balance can be reached with respect to the authority granted by the DMCA’s subpoena provision, the war against copyright infringement will be won at the expense of service providers and the Constitutional rights of alleged infringers.

The goal of this Article is to demonstrate that the DMCA subpoena provision neither aids those attempting to enforce copyrights nor sufficiently protects the interests of Internet users. A recent decision by the DC Court of Appeals stripped copyright holders of the use of the DMCA subpoena in situations where the offender’s ISP acts merely as a conduit for the transmission of infringing material, which encompasses the most pervasive and egregious form of infringement: unauthorized sharing of copyrighted material via peer-to-peer (P2P) networks, such as KaZaA. Thus, the DMCA subpoena power is unavailable to copyright holders when it is most needed. This situation must be remedied.

At the same time, and even more importantly, additional statutory safeguards protecting the interests of ISPs and the rights of alleged copyright infringers must be built into the subpoena provision, which may be accomplished without sacrificing or significantly impeding copyright owners’ ability to enforce their copyrights. At best, the DMCA subpoena provision, in its current form, completely undermines alleged infringers’ Fifth Amendment due process rights and unfairly places the likely immense burden of challenging and responding to subpoenas on ISPs. At worst, the provision is susceptible to mistakes and abuse by those who would use it for purposes other than copyright enforcement. The inclusion of certain requirements, such as requiring the provision of notice to alleged infringers before their subscriber information is released, would not unduly burden copyright holders or hinder the enforcement process, but would protect against mistakes and abuse.


Communications Law | Computer Law | Entertainment, Arts, and Sports Law | Science and Technology Law

Date of this Version

February 2004