A Copyfighter’s Musings

Politech has featured an argument between Public Citizen and other amici for Verizon.  Public Citizen, which had defended people from CyberSLAPP suits, decided not to join the EFF’s brief and is instead arguing that the Court should recognize some privacy safeguards while upholding the DMCA itself.

Public Citizen “urges the Court to rule that, when a subpoena is obtained under 512(h), the subpoenaing party must allow enough time to respond to enable the ISP to provide notice and to enable the user to obtain counsel to defend his anonymity.”  The court should use the typical balancing test for anonymity prior to revealing a user’s identity.  Since the users were notified in this case, the court should affirm the the lower court’s ruling.

Here’s where I get a little confused and, maybe, if you take a look at the briefs and messages, you can see where I’m right/wrong.  Public Citizen argues in one part of its brief that the John Doe procedure for identifying users should be used.  At the same time, Public Citizen seems to argue that the DMCA, while not precisely like the John Doe procedure, satisfies the same procedural needs.  As long as the users (the “Does”) are aware that the copyright holder is seeking their identities, then the procedure is fine.  Public Citizen’s brief closes with a description of the evidence the RIAA produced, mentioning that the Does did not contest this information and that “The John Doe procedure would not provide any more protection.”  The reason I find this incredibly confusing is that Public Citizen’s press release discusses how “the same [John Doe] procedures apply under the DMCA.”  So, are they saying that the exact same procedure must be applied or that the DMCA with notification to the Doe is equivalent? 

I seem to not be the only one getting a mixed impression. On Politech, EFF Chairman Brad Templeton wrote, “You’re not so far from the EFF in this case then.  We agree that proper John Doe defendant rules should be applied in these cases, as they have been for alleged defamation cases on online message boards and other locations. The court has so far interpreted the statute to hand over identity with a mere allegation.  There has to be a standard of proof before the identity is handed over.”  Meanwhile, EFF lawyer Cindy Cohn wrote in to voice her disagreement with Public Citizen’s believing notification is enough.

In any case, I presume that Public Citizen is only asking the court to affirm a notification requirement.  Otherwise, they would have joined the EFF’s brief, which details the lack of safeguards in the DMCA and explains how the current procedure is unconstitutional.  As Public Ciizen’s Paul Levy noted on Politech, that’s a much tougher argument to make.  Public Citizen is simply asking the court to read the law in a particular way.  Moreover, they’re only stating the the procedural requirements have been satisfied in this case under these particular facts.  It’s a pretty narrow argument.

Filed by Derek Slater at 12:16 pm under General news
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