July 21, 2003
Question: how much of a difference will proxy servers make?
First, will they actually work? From what I’m reading, they will hide the IP of the sender and receiver. Is that true?
Second, could the owner of a proxy server be liable or required to identify the user? Let’s put aside contributory liabilty arguments for the moment and consider DMCA 512. It looks like proxy servers would fall under subsection (a) – they’re just passing information which they have no control over.
Here’s where the Verizon appeal is going to be very interesting. The court read the subpoena subsection to apply to all service providers, even ones in subsection (a). This seems contrary to the statute, given that those providers do not have a designated copyright agent and that there is no takedown procedure in that section. (Perhaps a better way of dealing with Verizon would have been to put it in subsection c because the material in a loose sense resided on the network.)
If this result stands, a proxy server owner would have to turn over the identity of those who transmit through it. Do proxy servers even record such information? The information surely is “available” to them, even if they don’t record it. So would they be forced to record it?
And would they have to block people who repeatedly infringe, subject to subsection (i)? How do you construe account holders and subscribers? Students at colleges and ISP subscribers obviously count, but proxy server users?
[added:] Another interesting anonymity feature is blocking others from viewing your file library. I don’t know if you can get around this (searching using the file sharer’s name perhaps?), but, if you can’t, then it might be a way of slowing down the RIAA. They won’t want to subpoena people for just one or two songs.