ALAWON: American Library Association Washington Office Newsline Volume 12, Number 43 May 19, 2003 In This Issue: 1. ALA Joins in Amici Curiae Brief in RIAA v. Verizon 2. Copyright Office Rulemaking on DMCA - Libraries Testify at Hearings 1. ALA Joins in Amici Curiae Brief in RIAA v. Verizon ALA, along with the American Association of Law Libraries and the Association of Research Libraries, has joined in an amici curiae ("friends of the court") brief in the RIAA v. Verizon case, in support of Verizon. RIAA has sued Verizon to compel Verizon to comply with a subpoena to turn over the identities of Verizon Internet users who RIAA alleges are engaged in copyright infringement. The case concerns whether a communications service provider acting as a "mere conduit" under Section 512(a) of the DMCA must comply with a subpoena issued under Section 512(h). Initially, the case focused on statutory construction -- did 512(h) apply to mere conduits, or did it only apply to providers of hosting and linking services under Sections 512(c) and (d)? The district court ruled that 512(h) in fact did apply to mere conduits such as Verizon. When the RIAA served a second subpoena on Verizon, Verizon raised constitutional issues, which the US District Court judge ordered the parties to brief. Verizon argued that the clerk of court lacked the power under Article III of the Constitution to issue a subpoena unless a lawsuit had been filed. Verizon further argued that Section 512(h) as interpreted by the district court threatened its subscribers' First Amendment and privacy rights. The district court rejected these arguments as well, and the decisions with respect to both subpoenas are now on appeal to the US Court of Appeals for the DC Circuit. The argument to the appeals court essentially is that the DMCA as interpreted by the district court would allow a private party the power to invoke judicial process (the subpoena issued by a clerk of the court) to demand identifying information about another person, without a lawsuit having been filed or even representation that suit is imminent. Moreover, under this interpretation of the DMCA identifying information would have to be provided by the Internet service provider to the copyright owner without notice to the subject of the subpoena (the Internet user) or an opportunity for that person to be heard, and without a federal judge's oversight. The DC Circuit has a strict rule that only one amicus brief can be filed per side, so ALA is one among 45 amici. The brief, which was filed on May 16, focuses on the constitutional and privacy issues, not the statutory construction of the DMCA (which is being addressed by Verizon in its brief). The court of appeals has set oral argument for September 16. 2. Copyright Office Rulemaking on DMCA - Libraries Testify at Hearings On May 9, the U.S. Copyright Office concluded a round of hearings in Washington, D.C. pursuant to its rulemaking, under the Digital Millennium Copyright Act of 1998 (DMCA), to determine potential exemptions to the Section 1201 prohibition on circumvention of technological measures that control access to copyrighted works. The five major U.S. library associations were represented at three of the Washington hearings by their outside counsel, Jonathan Band, of Morrison & Foerster, who testified in support of several exemptions that the libraries have requested through the written comments submitted to the Copyright Office. The libraries' written comments to the Copyright Office and Mr. Band's statements of his testimony can be found on the ALA Washington Office website. http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/DMCA__The_Digital_Millenium_Copyright_Act/DMCA_Section_1201_-_the_Anti-Circumvention_Rule.htm The Copyright Office also held hearings in California on May 14 and 15 at the University of California at Los Angeles School of Law. Transcripts of the first several hearings are now available on the Copyright Office web site: http://www.copyright.gov/1201/ The current exemptions to the anti-circumvention provision of DMCA are in effect only until October 28, 2003, which is the new date by which the Copyright Office will announce whether these, and any other exemptions, should be in effect for the next three years. The two existing exemptions are: 1. Compilations consisting of lists of Web sites blocked by filtering software applications; and 2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence. The libraries' filing asked for a renewal of these exemptions, which were granted in the 2000 Rulemaking, plus an additional exemption for "literary works, including eBooks, which are protected by technological measures that fail to permit access, via a 'screen reader' or similar text-to-speech or text-to-Braille device, by an otherwise authorized person with a visual or print disability." ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. To subscribe to ALAWON, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc@ala.org or go to http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send the message: unsubscribe ala-wo to listproc@ala.org. ALAWON archives at http://www.ala.org/washoff/alawon. ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478 toll-free; fax: 202.628.8419; e-mail: alawash@alawash.org; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Camille Bowman, Mary Costabile, Don Essex, Patrice McDermott and Miriam Nisbet. Office for Information Technology Policy: Rick Weingarten, Director; Jennifer Hendrix, Carrie Russell, Claudette Tennant. ALAWON Editor: Bernadette Murphy.