September 28, 2006 | By Fred von Lohmann

Microsoft Hunting for FairUse4WM Creator With Subpoenas

As has been widely reported, the DRM on files restricted by Microsoft's "PlaysForSure" DRM has been repeatedly broken by an anonymous reverse engineer known as "viodentia."

Now Microsoft has filed a lawsuit in federal court in Seattle against "John Does," in order to get the power to issue subpoenas to ISPs and email providers in order to track down the real identity of "viodentia." You can download the complaint and the motion seeking permission to issue subpoenas, courtesy of the Seattle Post-Intelligencer's Microsoft blog.

Two interesting things to note here.

First, Microsoft is arguing that they are entitled to subpoenas to unmask viodentia because they have met a "motion to dismiss" standard. That's far too relaxed a standard, as we've argued in several cases.

Courts around the nation have recognized that plaintiffs that seek to pierce the anonymity of online speakers must first offer competent evidence of viable claims, significant discovery interests and the absence of alternative means of vindicating their rights. If they can do so, courts must then assess and compare the magnitude of the harms that the requested production would cause to the competing interests. Liberal protection for the right to engage in anonymous communication -- to speak, read, listen, and/or associate anonymously -- is fundamental to a free society, and there is no reason to weaken those protections in this case.

Second, there is no DMCA circumvention claim in Microsoft's complaint. Instead, Microsoft argues that FairUse4WM must contain Microsoft source code or constitute a "derivative work" of the Microsoft code. Given the fact that "viodentia" denies this, Microsoft may be on thin copyright ice here.


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