Stop the abuse... bring back the law[yers]

The MPAA and RIAA have taken to sending DCMA subpoenas, apparently via automated means, that result in unjustified takedown requests. Automated searches seek "pirated" content on the web, though there appears to be little human verification before a subpoena is sent. The chilling effect of these notices, it is feared, will injure perfectly innocent activities. Donna Wentworth blogged on the response by Linux Australia:

"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."

The DMCA (pdf) allows laypersons and their agents to file subpoenas in order to identify alleged infringers:

(h) SUBPOENA TO IDENTIFYINFRINGER — (1) REQUEST. — A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

While this may be beneficial in that it allows the "little guy" to seek out infringers against his work, is has an unfortunate side effect. It is difficult to prevent abusive uses or improper invocation of the DCMA subpoena power. As Ms. Wentworth pointed out, section 512(f) includes a provision designed to punish person(s) making misrepresentations under the law:

Any person who knowingly materially misrepresents under this section

(1) that material or activity is infringing ... shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Arguing, however, that 512(f) provides legal teeth against improper subpoenas is like purchasing a toothless rottweiler to guard your home. Sure, it looks nice and casual passersby think that it's great prevention, but the people who really want to sneak one by you know the truth. Not only are the damages limited , the scienter is inappropriate: if a subpoena is researched, generated and sent automatically, it will be nearly impossible to prove "knowing" misrepresentation.

Considering the implications of improperly using the power of the federal court system--without actually using a human to confirm the existence of an alleged violation rather than a piece of Linux code, historical movie archive or gamma ray a capella--the mens rea ought to be lowered.

The subpoenas have a tremendous chilling effect. When received by the common citizen, the legalese forces compliance. It is easier to take down legal materials than attempt to fight the allegations. They are a form of legal extortion: do what we say, or else you are going to a pay a lot more than if you just do what we tell you. Unfortunately the extortion appears under seal of the district court.

Taking this to the next level, why not send out a whole batch of subpoenas to an ISP. Let the ISP notify the user. Then send the user a letter "offering" a settlement. I think a different provision should apply to this activity: 18 U.S.C., Chapter 41: Extortion and Threats. Section 875(d), for example:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

The other solution: take the subpoena power away from mere agents of the copyright owner. Require that they be filed by a member of the bar. In most cases, these parties are large corporations and can afford an attorney's services--and it's only fair since the recipient will likely need to hire an attorney to fight back. An attorney would be putting her name, reputation and bar card on the line each time she requests a subpoena. She is going to make sure that the allegations are meritorious.

Walter Olson blogged on the "legal extortion" and the steps at least one judge has taken to combat it (in a tort claim). Judge Samuel Kent fined an attorney $18,000 for what he characterized as an attempt to"legally extort money." He noted that "[e]ven a minimal investigation into the facts and the law of this case would have revealed the abject frivolity of all of plaintiff's claims." (Kevin Moran, Attorney Rebuked and Fined, Houston Chronicle, May 11, 2004).

Placing the power of the courts in the hands of untrained professionals is a dangerous proposition, especially when there are Constitutional overtones and the danger of chilling free speech. An attorney provides an additional line of defense, and can be quickly dealt with by the court via a number of means, many of which do not require showing a "knowing" failure to comply with the law.

Subpoenas in nearly all other actions flow from the hands of an attorney (save a few pro se litigants). The extra layer of protection is something we all deserve.