October 30, 2006 | By Kurt Opsahl

DMCA Subpoenas Should Not Be Abused to Silence Speech

The much maligned Digital Millennium Copyright Act (DMCA) allows a copyright holders to unmask an Internet user's identity based on a mere allegation of infringement without filing an actual lawsuit or providing the user any due process. DMCA 512(h) is troubling enough when used in cases of actual infringement, but even more troubling when used to stifle critical speech -- and far worse when the content at issue is about the subpoena-seekers, not by them.

Today, EFF announced that it is fighting back against Landmark Education's attempts to abuse DMCA subpoenas to Google Video, YouTube and the Internet Archive to identify people who posted a video documentary critical of the organization.

The French documentary, entitled Voyage Au Pays Des Nouveaux Gourous (Voyage to the Land of the New Gurus), is not copyrighted by Landmark, but it does contain hidden camera footage from inside the Landmark Forum. To the extent that Landmark has any copyright at all at issue, such limited and transformative use of a copyrighted work for purpose of criticism, commentary, and news reporting is self-evidently fair use. While Landmark may believe that the documentary is unfair (as asserted in its letters), the DMCA is not an appropriate way to identify critics.

Landmark's efforts are being challenged on multiple fronts. The Internet Archive is fighting its subpoena, and EFF filed official objections on its behalf. EFF will also file a motion to quash the subpoena issued to Google Video, on behalf of the anonymous speaker who uploaded the video. Google has advised Landmark that it will not produce the requested information pending a ruling on that motion. YouTube sent notification to the user about its subpoena, and is giving the user a reasonable opportunity to move to quash it.

The video is also available on the French video site, Daily Motion. It is unclear whether Landmark has sought identity information from Daily Motion.

You might recall that EFF helped Verizon successfully limit the scope of DMCA 512(h) when the RIAA attempted to attain the identities of P2P file sharing users. The D.C. Circuit Court of Appeals held that the provision doesn't apply to content residing on individuals' own computers. But 512(h) still does apply to content on an online service provider's computer. Landmark Forum's actions provide even more reasons why substantive reform of this provision is necessary.

More information about the Landmark Forum misuse of the DMCA here

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