I. Introduction

Recently I attended a certain program organized by The Copyright Society in Washington, D.C. When I walked in, a few heads turned, eyebrows lifted, glances exchanged. I could read the balloons over their heads: "What is she doing here?" You see, I am counsel for many non-profit groups in opposing the Recording Industry Association of America's push for unilateral subpoena power under DMCA Section 512(h) (2). From this one case, many copyright proponents categorized me as someone who is against strong enforcement of the copyright laws.

Wrong. From the first day I began practicing law, the bulk of my work has always been on behalf of copyright and trademark holders. I have pursued literally thousands of infringers, and I do so gleefully. I love my work, and I do not hesitate to wage no-holds-barred legal battle with someone who has infringed my client's work, even if that infringer is genuinely sorry he got caught. Sometimes especially then.

Given that the DMCA subpoena provision is a powerful weapon to add to the copyright owner's arsenal, how did I get hired to be on the "wrong" side of this fight? Well, in addition to my IP practice, I also am a First Amendment attorney, and anonymity is an aspect of the free-speech right. I have litigated some of the leading Internet-anonymity cases, and I have fought more subpoenas to learn the identity of a John Doe than anyone else, although in the non-copyright context. In this John Doe practice, I've seen - time and time again - subpoenas issued when the underlying case is utterly frivolous, solely because the subpoenaing party wants to learn Doe's identity in order to intimidate him, and to extract revenge outside the legal system.

So when the copyright interest and the anonymity interest are at loggerheads, which side am I on? I can only say "neither and both." As will hopefully become apparent in this paper, the very question is as much a set-up as "how often do you beat your wife?" The bottom line, although perhaps cryptic, is that I favor the participation of Lady Justice, who stands between the competing interests of copyright and anonymity.

II. The DMCA Subpoena Power

Most readers of this forum know what the DMCA subpoena power is, but a short explanation is necessary for those who don't. Without getting into all the nitty gritty details, or the various interpretative camps, the Digital Millennium Copyright Act grants the "subpoena power" to anyone who claims he is a copyright owner and that his copyright has been infringed online. Armed with this power, anyone (lawyer or layperson) can walk into a federal courthouse anywhere in the country and demand that the court clerk give him a subpoena, forcing an Internet service provider (ISP) to disclose, right away, the alleged infringer's name, address, and telephone number. Although this subpoena trumpets that it is issued by a federal court and failure to obey it will constitute contempt of court, no judge is ever involved, and the court clerk has no discretion to refuse to issue the subpoena, regardless of how patently silly the copyright claim may be.

III. Competing Rights of Copyright and Anonymity

It's really only been in the last year that DMCA subpoenas have started to swell, leading to this collision of copyright and anonymity rights. But that is misleading, because there really is no collision between copyright and anonymity rights -- if you have infringed a copyright, then you have forfeited your anonymity right.

As Shakespeare wrote, "Ay, there's the rub." It is precisely the failure to abide by this basic "if-then" logic that makes DMCA subpoenas so offensive. On one hand, you have the copyright, which has constitutional weight. On the other hand, you have the anonymity right, which also has constitutional weight. Which one should triumph? As any good lawyer will tell you, it depends. The key is whether, in fact, the anonymous person actually infringed an enforceable copyright. If yes, then he forfeits his anonymity right. If no, then he retains his anonymity right.

Call to mind the Scales of Justice, the illustration of the fundamental concept on which our entire legal system is built. The scales, representing competing legal rights, are weighed by a blind and impartial arbiter - a judge - who decides which legal right is weightier and should prevail over the other interest (3). The appropriate manner to evaluate each interest - the copyright on one hand, the anonymity on the other - is to present these interests to a neutral third party for consideration.

But DMCA subpoenas do away with the blind and impartial arbiter, and trash the "if-then" logic. DMCA subpoenas give evaluation of the merits to an inherently biased party, a party who is ensconced on one side of those very scales. The copyright owner himself unilaterally determines if his rights trump those of the anonymous alleged infringer. No longer is the rule "if-then" -- in its stead is the "if I say so" rule: "If I say that you infringe my copyright, then you forfeit your anonymity right." Under this "if I say so" regime, copyright owners are turning the entire American judicial system on its head - the judge is eliminated as so much dead wood, utterly unnecessary because, supposedly, a copyright owner could never be wrong about his legal rights.

IV. Abuse of DMCA Subpoena Power

No system is more ripe for abuse than one where the fox is guarding the henhouse. Abuses of the subpoena power are simply unavoidable. Because the purported copyright holder has the unilateral right to decide if his opponent's anonymity is justified, the DMCA subpoena procedure is fundamentally unfair from the get-go. Honest mistakes, negligent errors, and intentional deceptions will flourish. Certain individuals' constitutional anonymity rights will be stripped without just cause, and without the minimum quantum of fair play enshrined in our legal system. Innocent people will suffer as a result. More importantly, confidence in the impartiality of the judicial system will erode, which will be a grave injury to all of us, and one that is not easily remedied.

• As a zealous advocate, the copyright owner (and his lawyer) will see infringements when a neutral third party may not. For example, several retailers sent DMCA notices on product pricing information, asserting that these prices are protected by copyright, even though it is plain that copyright law does not extend to basic facts (4). As another example, copyright owners have sent DMCA notices over files that are clearly not infringements, but which have names that trip up automated copyright enforcement programs, such as when RIAA went after an astronomy department with a name similar to a musician, or when the RIAA carelessly accused a tiny book report file on Harry Potter of being an infringing movie. (5)
• Without a need to answer to anyone except themselves, copyright owners (and their lawyers) do sloppy work. Copyright ownership, especially in the music industry, is often a confusing chain of assignments and creative collaborations. If the purported copyright owner doesn't have to sort out the mess before obtaining the subpoena power, you can be sure it ain't gonna happen - and you can be equally sure that some of these purported copyright owners do not in fact own the copyright. One shameful example of sloppiness is provided in the new PacBell lawsuit against RIAA - as shown there, in obtaining the DMCA subpoena, the copyright lawyers couldn't even be troubled with the time it takes to get the correct ISP company name from an online, publicly available database. (6)
• Once anonymity is pierced, there's no clear way to put the cat back in the bag, even if the copyright owner ultimately admits that it shouldn't have ripped off the mask in the first place. For example, the PacBell lawsuit also documents dozens of DMCA demands from a hard-core gay porn Web site called Titan. With your identity in hand, Titan may contact your employer to complain about your supposed copying of its copyrighted hard-core gay porn. Regardless of whether this is an instance of true infringement, fair use sexual exploration, illegitimate copyright, mistaken identity, a hijacked computer left logged on after hours, or a cruel hoax, you will be forever branded as The Guy Who Was Fired for Gay Porn on His Computer. These privacy concerns are not limited to mere embarrassment, however intense. The time will come when physical danger is involved - pedophiles and stalkers can just as easily use the DMCA subpoena power to learn your and your kids' home address.

It ought to be self-evident that not everyone in this world is above reproach and not everyone is capable of objectively evaluating his interests. In fact, very few are. Lawyers, despite being bound by ethics rules, are sometimes the worst. Any litigator worth his salt will have at least a few war stories where opposing counsel acted dishonestly, even when a judge could have levied sanctions. And any copyright lawyer will have a few anecdotes about sending or receiving a demand letter on an "iffy" case, one he'd bet his bottom dollar would fail the proverbial giggle test and be laughed out of court. (7)

It is basic human nature to try and get away with whatever you can. It is this understanding of human nature that resulted in the American judicial system as we know it, with its scales of justice and an impartial judge. Particularly when two interests of constitutional import - copyright and anonymity - are involved, this legal construct is critical.

This legal construct is critical not only for fairly resolving the dispute at hand, but also as to whether future disputes will be resolved at all. If people don't have faith that the judicial system is fair, that court orders are issued with due regard for fair procedures and avoidance of bias, then all hell will break loose. As any legal scholar can tell you, the appearance of propriety is often as important as propriety itself.

V. Returning the Scales of Justice to Online Infringement Disputes

When an infringement is serious enough, the copyright owner doesn't quibble about bringing in a neutral evaluator. Particularly with the panoply of remedies available to a prevailing copyright owner, those with meritorious claims don't shy away from filing a lawsuit. Copyright owners have filed John Doe lawsuits for decades, and obtained subpoena powers specifically approved by the judge. The subpoena power in a John Doe lawsuit can be obtained almost immediately, on an ex parte, emergency basis. These lawsuits and subpoena requests can be routine and relatively inexpensive, with the creation of standard forms, created with a snap through word-processing departments.

The primary difference between the John Doe lawsuit path and the DMCA subpoena route is that, with the former procedure, the copyright owner (and his lawyer) knows that the case will be reviewed by a judge, and no one wants to look foolish to the court. Moreover, no one wants to be subject to the Copyright Act's attorney-fee-shifting provision (an award is practically automatic to the prevailing party), no one wants to be subject to a malicious prosecution action, and no one wants to be potentially sanctioned by the court under Federal Rule of Civil Procedure 11. As a result, the plaintiff ensures that the I's are dotted and the T's crossed before pursuing his claim. And isn't that what we want to happen?

Perhaps I've been a litigator for too long, but I can't help but be suspicious of those who don't want their legal claims tested in court - it has the appearance of a bluff, a house of cards that won't stand up to a slight breeze of resistance. Under the DMCA subpoena provision, the legal system condones a "just trust me here" system that goes against the grain, as well as common sense about human nature. The DMCA subpoena provision only increases a sense of judicial favoritism and bias: Does anyone really doubt that the reason why a copyright owner wants to know the identity of an alleged infringer before naming him in a public lawsuit is because the copyright owner doesn't want to sue a senator's son?

VI. Conclusion (8)

And that is my confession. Before I am an IP lawyer, before any legal specialty - I am first and foremost, a lawyer. Old-fashioned, I suppose, but I take great honor in being part of a phenomenal system that, despite its flaws, is the best one yet devised to fairly resolve disputes. As much as I enjoy clubbing copyright infringers, I don't agree with a procedure that allows an inherently biased party to violate a constitutional right of an adversary pursuant to a court order without some modicum of judicial oversight. Not even for copyright infringement.

Footnotes

(1) Megan E. Gray is an attorney with Gray Matters, in Washington, D.C. She can be reached at mg@megangray.com.

(2) Recording Industry Association of America v. Verizon Internet Services, Inc., U.S. Court of Appeals for the District of Columbia Circuit, Case Nos. 03-7015 and 03-7053.

(3) http://www.statue.com/lady-justice-statues.html. This symbol is best known as Lady Justice.

(4) http://www.fatwallet.com/forums/messageview.cfm?catid=18&threadid=129657

(5) http://www.eff.org/Cases/RIAA_v_Verizon/

(6) http://www.eff.org/IP/P2P/PacBell_v_RIAA.pdf

(7) See Chilling Effects Project, www.chillingeffects.org

(8) In homage to the Copyright Colloquium, this paper contains 21 colloquialisms.