PacBell Challenges Copyright Cartel

  • Mercury News: Pac Bell Internet sues over subpoenas. Pacific Bell Internet Service said a cascade of subpoenas and 16,700 take-down notices from an electronic “bounty hunter” are turning it from an Internet service provider into the Internet police. The San Francisco-based unit of SBC Communications sued the recording industry, a New York software company and a San Francisco porn site in federal court Wednesday, saying it is being inundated with legal orders and can see no end in sight.

  • I’ve taken my shots at SBC and its Pacific Bell subsidary, but this deserves compliments. The company is sticking up for its customers as well as its own business.

    The music industry wants to turn ISPs in to copyright cops. The industry doesn’t want to go through the bother of persuading a judge that a user is a probable infringer — so it’s blanketing the nation’s courts with subpoenas based solely on one side’s allegations.

    As an SBC lawyer told the Mercury News’ Dawn Chmielewski, “These DMCA subpoena powers allow anyone to write a simple letter and obtain a subpoena by nothing more than the stamp from a clerk of court that can be used to ask for the private information of any Internet user.” This is unacceptable abuse of the system.

    If the record companies have evidence — and they surely do in many cases — they should be compelled to show some of it first. Once again, a little balance would go a long way.


    Posted by: Kim Helliwell on August 1, 2003 02:35 PM

    I’m curious how this case will differ from the Verizon case? I haven’t seen that mentioned in any of the stories about this that I’ve read. It appears to be a difference of degree or volume, rather than of kind. So, how will the legal system get around the precedent of the Verizon case? Won’t we just end up with DMCA upheld, once again, and the Copyright Cartel still triumphant?

    Posted by: Kim Helliwell on August 1, 2003 05:07 PM

    I should have said: “How will Pacbell get around the precedent of the Verizon case?”

    Posted by: Dan Gillmor on August 1, 2003 05:31 PM

    Different federal circuit. Judges around here are savvier about technology.

    Posted by: on August 2, 2003 07:46 AM

    I have to agree with both Dan and Kim, but I lean more to Kim.

    While the judges are more savvy in the San Ramon area than others, our legal system is very precedent-savvy, as well. Sure, the volume is higher – and that, along with the “show us the suspicions” – will probably be the crux of SBC’s issues.

    But break the case down, request by request. Each one – alone – is upheld to some degree by the Verizon precedent.

    Just a bunch of the same, instead of one.

    My take: SBC is NOT doing this for their customers. NO. They are doing it for two reasons: 1) To save themselves the time and effort (both this time and in the future; if there was keystroke combo that would e-mail the request info to RIAA, they’d do it…), and 2) To protect themselves against future lawsuits. From both the customers (who will make some sort of privacy-invasion argument), AND the RIAA — hey, if RIAA is correct, and SBC customers are trading pirated files…well, SBC can be held for some sort of contributory infringment.

    And who will the RIAA go after first? The 15-year-old who trades InSynch files, or … a multi-billion dollar company?

    Yeah, that’s a toughie…

    Repeat after me: It’s all about the litigation (witness the SCO vs. IBM fiasco..)

    Posted by: on August 2, 2003 09:22 AM

    My take? SBC probably got served out the wazoo and doesn’t want to do the work. We deal with them constantly as an ISP and they never fail to do the least work possible in their legal and billing departments.

    Posted by: Sunidesus on August 2, 2003 05:42 PM

    Here’s hoping that the judge in that case does the right thing instead of bowing down to the RIAA like the rest of the government has been doing.

    Posted by: on August 5, 2003 10:40 AM

    Dear Mr. Gillmor,

    I’m afraid you fundamentally misunsterstand the subpoena process in civil litigation. In the federal courts, parties are empowered to issue subpoenas requiring others — both parties and non-parties — to hand over documents and appear for depositions, etc. This has been the case since at least the early part of the 20th Century (possibly earlier — I am not a legal historian), but in any case well before anyone had conceived of the Internet or the DMCA. The issuance of a subpoena does not require court approval; private parties issue them directly by themselves. Subpoenas are ALWAYS “based solely on one side’s allegations.” The recipient can, however, fight the subpoena in court. Nearly every subpoena seeks information that the recipient considers “private” and wishes to keep that way — business records, personal information, etc.

    The expedited subpoena provisions of the DMCA are really not a major change from the situation in pre-DMCA days. Prior to the DMCA, the copyright owner could file suit against a “John Doe,” and then issue a subpoena to the ISP seeking the identity of the alleged infringer (with no court approval necessary for the subpoena). The DMCA’s expedited subpoena provisions simply streamline the process, allowing the copyright owner to issue the subpoena directly, BEFORE filing suit. But in neither case does a court have to look at a subpoena prior to its issuance to decide whether it is legitimate. Your quarrel appears to be with the civil discovery process in general, not with the DMCA in particular.

    One last point: You say that SBC may get a different result in federal court in California because “Judges around here are savvier about technology.” This is not fair. First, many federal judges in the DC Circuit are savvy about technology. But, more importantly, I think you misunderstand the role of judges in such a case. The vast majority of judges decide cases by asking, “What does the statute require?” They do not — as you imply they should — ask, “Do I think it’s a good statute? And, if not, how should I write an opinion in accord with how I would have preferred the statute was written.” Like it or not (obviously you don’t), the DMCA authorizes the type of subpoenas that the RIAA has been issuing. But it’s the fault of Congress, not of the judges who are under an obligation to interpret the law faithfully as it was written — not as they might prefer it to be.

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