Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands
The DMCA has been used to invade the privacy
of Internet users, harass Internet service providers, and chill online speech.
The subpoena and takedown powers of Section 512 are not limited to cases
of proven copyright infringement, and are exercised without a judge's review. The
following is a small sampling of abuse, overreaching, and mistakes in the
use of Section 512(h) subpoenas, Section 512(c)(3)(A) notices, and equivalents.
Judicial oversight could curb these abuses without interfering with copyright
Error: RIAA sent a DMCA notice to
Penn State's Department of Astronomy and Astrophysics, accusing the university
of unlawfully distributing songs by the musician Usher, and nearly forcing
the department's servers offline during exam period. As it turned out, RIAA had mistakenly identified the combination of the word "Usher" (identifying
faculty member Peter Usher) in conjunction with an a cappella song
performed by astronomers about gamma rays as an instance of infringement.
In apologizing, RIAA noted that its "temporary employee" had made an error.
RIAA admitted that it does not routinely require its "Internet copyright
enforcers" to listen to the song that is allegedly infringing.
Plain Error: RIAA recently admitted
to several dozen additional errors in sending accusatory DMCA notices
- all made in a single week. But RIAA has refused to provide additional
about these errors, professing concern that to do so would compromise
the "privacy" of
its employees and of the victims of its false accusations.
Facts: Wal-Mart sent a Section 512(h)
subpoena, along with a 512(c) notice, to a comparison-shopping website
that allows customers to post prices of items sold in stores, claiming
incorrectly that its prices were copyrighted. Wal-Mart sought the identity
of the user who had anonymously posted information about an upcoming sale.
Other retailers, including Kmart, Jo-Ann Stores, OfficeMax, Best Buy, and
Staples, also served 512(c) notices on the website based on the same bogus
Domain Materials: The Internet Archive
is a well-known website containing numerous public domain films, including
the historic Prelinger collection. Many of these films have numerical
file names. A purported copyright owner sent a DMCA notice to the Internet
in connection with films 19571.mpg and 20571a.mpg. The sender mistook
Prelinger public domain films on home economics for the copyrighted submarine
Domain Materials: An individual who
simply wishes to erase the public record of his past, uncopyrighted messages
has invoked 512(c) in an attempt to force ISPs to take down the material.
Use: A DMCA claim was made against
an individual who posted public court records that contained copyrighted
material. The material was removed from the web until he filed
Criticism: The Church of Scientology
has long been accused of using copyright law to harass and silence its
critics. The Church has discovered the ease with which it can use the DMCA
to take down the speech of its critics. It has made DMCA claims against
a popular search engine, Google, to bully the engine to stop including
in its index any information about certain websites critical of the Church. href="#_edn7" name="_ednref7" title="">
and Overreaching: Trademark owners
are not protected under the DMCA. Nevertheless, some trademark owners,
eager to take advantage of the easy silencing of others under the 512(c)
process, have invoked the DMCA. title="">
Harassment: In 2002, Pacific Bell
Internet Services and its affiliates were given more than 16,700
DMCA notices by RIAA agent MediaForce; in July 2003, RIAA attempted
200 subpoenas through various affiliated entities. Titan Media,
a purveyor of pornographic materials, sent a single subpoena demanding
of alleged infringers at 59 different dynamically assigned IP addresses,
then dropped the subpoena when Pacific Bell announced its intent
to challenge its enforcement. 
Improper Identification: After receiving an
RIAA subpoena, Massachusetts Institute of Technology released the
name of a Romanian student with whom it associated the listed IP address. Despite
having been out of the country at the time of the alleged infringement
and declaring that he did not even own a computer, the student was
unable to prevent release of his name and identifying information. 
Subpoenas: The RIAA has served more than 1,600 subpoenas from
the D.C. District Court, many on parties more than 100 miles from Washington,
D.C. MIT and Boston College had to go to court to quash these subpoenas. RIAA
then re-issued them from the proper district, in Boston. 
Erroneous Complaint: Seven record labels mistakenly sued a 65-year-old Massachusetts woman for copyright infringement. They had filed a complaint against Sarah Ward based solely on KaZaA screenshots and Comcast's disclosure of her name and address in response to a subpoena. The record labels were forced to dismiss the complaint after learning that Ward used only a Macintosh computer incapable of running the KaZaA software.
 See McCullagh,
Admits It Sent Erroneous Letters
, CNET News.com,
May 13, 2003.
 See http://www.fatwallet.com/forums/messageview.cfm?catid=18&threadid=129657;
McCullagh, Wal-mart Backs
Away from DMCA Claim, CNET
Dec. 5, 2002.
 See http://www.chillingeffects.org/notice.cgi?NoticeID=232;
see also Loney and Hansen, Google
pulls Anti-Scientology Links, CNET News.com,
March 21, 2002.
 See http://www.chillingeffects.org/notice.cgi?NoticeID=310.
 See Orders Aug. 8, 2003, Massachusetts Institute of Technology v. Recording Industry Association of America, 1:03-mc-10209-JLT; Boston College v. Recording Industry Association of America
 See Schwartz, She Says She's No Music Pirate. No Snoop Fan, Either., New York Times, Sept. 25, 2003\; Gaither, Recording industry withdraws suit, Boston Globe, Sept. 24, 2003