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Summary:
Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 in an
effort to adapt copyright law to an evolving digital environment. The expansive
legislation is divided into five titles, the second of which is the focus of this report.
Title II of the DMCA amended chapter 5 of the Copyright Act, 17 U.S.C. § 501 et
seq., and created a new § 512 to limit the liability of service providers for claims of
copyright infringement relating tomaterials on-line. This ?safe harbor? immunity is
available only to parties that qualify as a ?service provider? as defined by the DMCA,
and only after the provider complies with certain eligibility requirements.
In exchange for immunity from liability, the DMCA requires service providers
to cooperate with copyright owners to address infringing activities conducted by the
providers? customers. Subsection 512(h) obligates service providers to divulge to
copyright owners the identity of a subscriber suspected of copyright infringement.
The subsection provides a detailed procedure that a copyright owner must follow in
order to obtain a subpoena from a federal court compelling the service provider to
reveal the identity of the suspected infringing user.
This report describes the safe harbor and subpoena provisions, along with the
responsibilities and obligations of service providers under 17 U.S.C. § 512. In
addition to highlighting specific aspects of the statutory text, the report examines
case law to date interpreting and applying the DMCA?s safe harbors and subpoena
procedure. With respect to the latter, the report examines the recent decision of the
D.C. Circuit Court of Appeals in RIAA v. Verizon Internet Services, holding that
service providers may not be subpoenaed to identify peer-to-peer music-file sharers.
