On DMCA and AHRA

(Legal analysis from the Berkman Center's DVD Discussion list)

-------- Original Message --------
Subject: [dvd-discuss] DMCA issue? RIAA (so SUE ME!)
Date: Wed, 2 Jul 2003 14:47:25 -0700 (PDT)
From: Marcia Wilbur <[email protected]>
To: [email protected]


If you have the time or desire to read this long "argument"(?), let me know
what you think is flawed with this. Just really let me have it! I'd
appreciate that...

after reading it,  maybe someone can explain to me why the DMCA is invoked
at all...wrt music.

While I understand that some people might NOT realize or comprehend the
actions the RIAA undertakes with regard to music and music downloads are
DMCA related, I think they are not DMCA related for other reasons. (i.e.
AHRA).

However, the RIAA has invoked the DMCA on many occasions regarding music
downloads. RIAA has subpoenaed to identify infringers using section 512 (h).


Section 512 (h)

h) SUBPOENA TO IDENTIFY INFRINGER-
`(1) REQUEST- A copyright owner or a person authorized to act on the owner's
behalf may request the clerk of any United States district court to issue a
subpoena to a service provider for identification of an alleged infringer in
accordance with this subsection.

COMMENT:
****(define infringer. If infringer means someone infringing on music
copyright and these people were making music copies for  personal use, then
no, those people were NOT infringers and not even alleged infringers. The
only thing that might make them alleged infringers is if they were
sharing/downloading for commercial purposes or to a device specifically
designed to store and record music)****

`(2) CONTENTS OF REQUEST- The request may be made by filing with the clerk--
`(A) a copy of a notification described in subsection (c)(3)(A);
`(B) a proposed subpoena; and
`(C) a sworn declaration to the effect that the purpose for which the
subpoena is sought is to obtain the identity of an alleged infringer and
that such information will only be used for the purpose of protecting rights
under this title.

COMMENT:
***(sworn declaration  if the RIAA representative or copyright owner/rep
wrote a sworn declaration alleging infringement because someone was copying
music for personal use then, the RIAA is alleging infringement against
someone who is CLEARLY not infringing according to the AHRA. This could be
considered harassment, and cause undo stress to the "alleged infringer".)***

`(3) CONTENTS OF SUBPOENA- The subpoena shall authorize and order the
service provider receiving the notification and the subpoena to
expeditiously disclose to the copyright owner or person authorized by the
copyright owner information sufficient to identify the alleged infringer of
the material described in the notification to the extent such information is
available to the service provider.

COMMENT:
***(was the material properly noted in the notification as per the DMCA? The
DMCA agent, for I believe it was Verizon, last year told me that many
notices get put aside and a large percentage of people accused do not
counter notify. In fact, almost no one counters.)

While the RIAA is attempting to use the DMCA in this way, they dont stop
here. Recently, in the "Usher incident", RIAA attempted to use the DMCA in a
notification to the college. The files there were not infringing and later
the RIAA blamed the event on a temp. However, Matt S., spent time looking
for the alleged infringing material. According to the DMCA, doesnt the
notification need to be more specific? Take for example the RemarQ case.
Wasn't proper notification a major issue in that case?!***


The Audio Home Recording Act (AHRA) might work to protect users from threats
of RIAA lawsuits. The RIAA is using the DMCA, although I believe the DMCA is
not relevant here.

The RIAA suing users seems flawed in so many ways,

1. Do you sue your customers?
2. The AHRA, or audio home recording act, gives immunity from lawsuits to
users who are copying or recording for non commerical purposes. A computer
is NOT a device specifically designed to store or record audio. Unless of
course, someone does specifically design their computer for that purpose, I
suppose that is possible.

(for more info pls see my essay about the issue :
http://electroniclaw.org/p2p.htm)

Soundbyting.com, a former active RIAA site, apparently replied in an email,
the following information to "Clarify the Legality of Home Audio Recording"
to minidisc.org:

"As long as the copying is done for noncommericial use, the AHRA gives
consumers immunity from suit for all analog music copying, and for digital
music copying with AHRA covered devices."

Also, allegedly written by soundbyting rep, "It is important to note that
the AHRA does not say that such copying is lawful; it simply provides an
immunity from suit."

Well, if users are immune from lawsuits, then, why does the RIAA sue or
threaten to sue people downloading music? I believe that the only losers are
the ones who settle!


-marcia