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WASHINGTON -- Amid escalating debate over enforcing copyrights online, a U.S. senator is gaining support for a bill to stop copyright holders from compelling ISPs to reveal identities of subscribers suspected of infringing without first filing a civil lawsuit.

The bill, introduced Tuesday by Sam Brownback (R-Kansas), comes while the music industry is locked in a battle with some ISPs and privacy advocates over its antipiracy campaign. The Recording Industry Association of America (RIAA) has invoked the 1998 Digital Millennium Copyright Act, which protects copyright of digital works, to obtain subpoenas that order ISPs to release data on users suspected of illegal file-sharing.

The measure has already gained vocal support from other senators, who question the provision in the DMCA that lets copyright-holders subpoena the names of alleged file-traders without first getting a judge's permission. One senator suggests that the DMCA subpoenas give copyright-holders more power to go after suspected copyright violators than U.S. law enforcement agencies have to seek information on terrorists.

Brownback, along with senators Ron Wyden (D-Oregon) and Norm Coleman (R-Minnesota) criticized the RIAA's use of the DMCA subpoenas during a hearing in the Senate Commerce, Science and Transportation Committee Wednesday. On September 9, Senator Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, asked the RIAA and the ISPs to seek a compromise and give him bimonthly reports.

Legislation's Provisions

Brownback's legislation is called the Consumers, Schools, and Libraries Digital Rights Management Act of 2003. It responds directly to ongoing litigation between the RIAA and ISPs Verizon Services and SBC Communications, Brownback says in a statement.

The RIAA has filed some 1600 informational subpoenas in recent months in a nationwide campaign to track down illegal file-sharers. The method is under fire from groups that say the method invades user privacy.

Brownback's bill would require copyright-holders to file a civil lawsuit before obtaining data about suspected infringers, instead of just filing a subpoena with a court clerk. The extra step would also make pursuing suspected file-traders more costly and time-consuming.

Brownback cited Verizon's complaint that the RIAA and other copyright-holders can get subpoenas without a judge's approval, but Justice Department investigators generally must go to a judge to subpoena terrorist suspects.

"Congress hasn't given this power to the federal government to investigate terrorism," said William Barr, vice president and general counsel for Verizon, which has been fighting RIAA subpoenas. "Why should the record industry--private citizens--have this unfettered subpoena authority to reach the most sensitive information people have?"

Critics of the DMCA subpoenas say that they could be used by stalkers, rapists, or identity thieves pretending to be copyright-holders.

Other senators acknowledge that the RIAA needs to protect its intellectual property. Senator Barbara Boxer (D-California) asked how Verizon and SBC can claim that the subpoenas violate customer privacy, when the companies share customer information with dozens of partners.

"I see just a little bit of hypocrisy," Boxer said. "It seems to me you're trying to protect privacy of theft."

Subpoenas Defended

At Wednesday's hearing, Brownback noted that adult content provider Titan Media filed a subpoena in July to get names of 59 SBC subscribers suspected of trading Titan's adult content on peer-to-peer services.

"I support strong protections of intellectual property, but I cannot in good conscience support any tool such as the DMCA information subpoena that can be used by pornographers, and potentially even more distasteful actors, to collect the identifying information of Americans, especially children," Brownback said.

An official with Titan Media owner Io Group, operator of TitanMen.com, said that the company would prefer to sue owners of the peer-to-peer networks, where its content has been traded, but that's proved difficult.

"If users do not want their names and identities associated with the theft of legal adult material, then they should stop trading it and making it freely available from their home computers," said Keith Webb, vice president of Io Group, in an e-mail response. "Once they get caught, they can't scamper behind the coattails of their ISP to try and avoid responsibility for their actions. Titan Media will not idly sit by and watch while hundreds of thousands of users steal our legal and copyright-protected property and make it freely available to anyone, including children."

RIAA president Cary Sherman also defended the subpoena process, saying that the subpoenas and the 261 lawsuits the RIAA recently filed against alleged music uploaders are one tool in an effort to educate Internet users that downloading copyrighted music is illegal.

Alternate Approaches?

Verizon and SBC want Congress to require the RIAA to file a lawsuit against each alleged copyright infringer, identified through IP address, and obtain a judge's order for the ISP to turn over the downloader's name, instead of relying on the DMCA subpoenas. But filing lawsuits against unnamed downloaders, as Verizon and SBC suggest, would expose their customers to more-invasive investigations than the DMCA subpoenas, Sherman said.

"Their alternative to the DMCA process...would force copyright owners to sue ISP customers first and ask questions later," Sherman told the Senate committee. "That strikes me as one of the least consumer-friendly options imaginable."

But Senator Wyden questions the RIAA's current approach.

"Tell us, if you would, how long you see this litigation derby going on," Wyden asked Sherman. "How many suits will be enough? How many kids and grandmothers are going to be chased down? Will 5000 suits send a message?"

Sherman said he can't estimate how many lawsuits will accomplish the RIAA's goal, but said that the lawsuits were effective in spreading the RIAA's message.

"Up until recently, people didn't even think twice about downloading music, and didn't even worry about whether it was right or wrong, legal or illegal," he said. "The result of these lawsuits--something we did not want to do and something we did not take lightly--has been to inform more people in the space of a week that this conduct is illegal than anything we have, notwithstanding a multiyear education program."

Remedies for Abuse

Alan Davidson, associate director of the Center for Democracy and Technology, told the committee that a few small changes to the DMCA will clear up most privacy concerns.

Davidson suggested that people should be notified and warned when their personal information is being requested, and recommended imposing penalties for misuse of information obtained by subpoena. He also suggested that Congress should get an annual report of subpoenas requested and granted.

The process "is rife for abuse, to reveal sensitive information online, to blacklist alleged infringers, to embarrass people, to market to them, or even for criminal purposes," Davidson says.

Sherman didn't answer directly when Brownback asked whether the RIAA would accept changes to the DMCA's subpoena process. The subpoena provision was part of a compromise agreed to by ISPs in 1998 in return for not being held legally responsible for copyright infringement that might happen on their networks, Brownback noted.

Coleman, chairman of the Senate Governmental Affairs Committee's Permanent Subcommittee on Investigations, said that his subcommittee will review the DMCA subpoena process and seek compromises to help copyright-holders protect their property.

"I don't believe that aggressively suing offenders will be sufficient to deter the conduct of an entire generation," he said. "The goal of the entertainment industry should be to create loyal, long-term customers, not engage in short-term strategies that...make examples of folks who may or not have known they engaged in improper behavior."

Scarlet Pruitt of the IDG News Service contributed to this report.

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