Microsoft's war waged with FairUse4WM
By Ryan Block 
posted Nov 13th 2006 12:09PM
posted Nov 13th 2006 12:09PM
Legal analysis courtesy of Scott McMillan, Zachary Sharpe, and Trevor Adler of The Columbia Science and Technology Law Review.
The press and blogosphere have recently been abuzz over programs that remove copyright protections technologies known as Digital Rights Management (DRM) from purchased or rented media files. These DRMs restrict a consumer's use of the media – morality notwithstanding, they are the only thing preventing you from copying your music or video files onto all of your friends' computers. DRM-stripping programs remove such restrictions from the file (and typically violate your terms of service agreement, to say the least). In September, Microsoft filed suit against the hacker(s) responsible for one such DRM-stripping program, FairUse4WM, purportedly created by the now notorious Viodentia. Other such programs reportedly target the DRM protections of the iTunes Music Store and AllOfMP3, among others. What will become of Microsoft's lawsuit? What does this have to do with "fair use" and the Digital Millennium Copyright Act (DMCA)? What follows is a brief overview in two parts. In the first, we'll discuss current issues surrounding fair use with regard to the DMCA, and in the second we'll approach Microsoft's legal actions against Viodentia for FairUse4WM.
What fair use is, and how it works alongside the DMCA
"Fair use" is a doctrine under US copyright law that permits certain acts that might otherwise be considered copyright infringement. Copyright law gives authors the right to exclude others from their work, and can sometimes get in the way of the ultimate goal of copyright, which is to promote progress in art and science. The theory here is that without copyright protections, many artists and authors would be discouraged from distributing their work. The fair use exception allows copyright protections to remain in place while enabling consumers some degree of freedom in their use of purchased media. For example, it was generally understood that ripping CDs for personal use was legal because it fell under the fair use exception. However, fair use was dealt a serious blow with the enactment of the DMCA in 1998 and the widespread use of DRM protections. Indeed, fair use is not a defense to a DMCA claim.
The DMCA specifically prevents someone from "circumvent[ing] a technological measure that effectively controls access to [copyrighted works]" without permission from the copyright owner (17 U.S.C.A. § 1201(a)(1)(A) & (3)(A)). It also prohibits a person from, among other things, making such a tool or offering it to the public (17 U.S.C.A. § 1201(b)(1)). This provision has given content providers the power to take legal action against virtually anyone who tampers with their DRM protections, even those who would have otherwise been protected under the fair use doctrine -- often times consumers like you.
A prime example of how courts have used this DMCA provision to strike down a DRM-removing technology involves DeCSS. As you might know, DeCSS removes the DVD content protection, or Content Scrambling System (CSS), essentially enabling anyone with a computer and a little know-how to rip DVDs. In the frequently cited case of Universal City Studios v. Corley 273 F.3d, 429 (2d Cir. 2001), the Second Circuit Court of Appeals affirmed a district court's ruling that barred Eric Corley -- aka Emmanuel Goldstein, publisher of the infamous 2600 hacker quarterly -- from making DeCSS available for download on 2600.com, or posting links to other websites offering the program for download. Among other things, the court rejected the idea that DeCSS could be protected under the fair use doctrine, reasoning that fair use is concerned with how one uses a copyrighted work, not how someone obtains the work in the first place. Thus, the court concluded that the right to view a DVD does not create a right to decrypt the DVD.
Because the DMCA doesn't distinguish between types of media involved or how protections are circumvented, the Corley case will most likely play a role in any future legal battle over DRM-stripping software. So far as FairUse4WM is concerned, the fair use doctrine would appear not give Viodentia (or users or distributors of the program) any protection against alleged DMCA violations, and FairUse4WM could suffer the same defeat in a US court as DeCSS. The European Union has enacted similar legislation to the DMCA, namely the 2001 EU Copyright Directive (EUCD). But Microsoft has admitted that it doesn't know Viodentia's location and has recently initiated action with Yahoo and Google to investigate. Legal defeat, however, has not at all magically eliminated the availability of DeCSS on the web. This may give some insight as to how effective current legal relief in the US will be once internet users take hold of a desirable new technology.
Have we seen the end of fair use? Current law still leaves a little wiggle room. While programs specifically designed to circumvent copyright protections have little chance of overcoming the DMCA, manual workarounds may still be legal. For example, most downloadable music services (begrudgingly) allow users to burn audio CDs from the music they buy. Doing so also strips the files of their DRM, but because users have permission to copy to CD, this use is acceptable under the DMCA. Re-ripping the CD back into unprotected audio files for personal use is probably acceptable under fair use or by some other right (the RIAA allows copying of CDs for personal use but not because of fair use). Whether courts would view this multi-step process as DRM "circumvention" under the DMCA has yet to be seen.
So where will the line between fair and illicit use eventually be drawn? The current legal incongruity between manual DRM workarounds and blatant DRM hacks reflects the questionable post-DMCA state of the fair use doctrine. Will this be enough to encourage lawmakers and courts to rethink their position on the DMCA? Only time will tell.
Microsoft takes legal action
On September 22, Microsoft filed a complaint against "John Does 1-10, a/k/a 'Viodentia'," alleging that Viodentia created and distributed software, FairUse4WM, that incorporates code from Microsoft's Windows Media Format SDK v. 9.5. Microsoft argues that Viodentia should therefore be held liable for copyright infringement. Filing an action against a John Doe is somewhat tricky in the American legal system; we have an adversarial legal system, and when you file against a John Doe, you're suing somebody whose identity you don't know and who's therefore not represented in court. One of the first steps, then, when suing a John Doe is to find out just exactly who you're suing. This is done through a third party discovery motion, which needs to be approved by the court. Accordingly, Microsoft filed a Motion for Leave to Conduct Third Party Discovery on September 26.
In granting the motion for third party discovery to identify Viodentia, Judge John Coughenour set explicit limits on who can be subpoenaed and what can be requested. Judge Coughenour allowed discovery against two named e-mail providers, Yahoo! and Google. Microsoft may only look for information that is reasonably likely to lead them to identify the user of the targeted IP address(es). Judge Coughenour also authorized a limited second level of discovery that works as follows: if Microsoft's Google and Yahoo! discovery uncovers an IP address relevant to the identification of Viodentia, Microsoft is permitted to issue subpoenas to the ISP that operates or issued that IP address in order to determine the identity of the user.
If Microsoft is unable to procure useful information from Google or Yahoo!, or if they run into a dead end at the ISP level, it will need to find some other means of identifying Viodentia. To expand the scope of its search, Microsoft would need to seek and receive further permission from the court. The present order gives Microsoft only 120 days to discover Viodentia's identity. Although Microsoft can seek a time extension, if it cannot name an actual person in its suit before Judge Coughenour's patience wears out, the case will likely be thrown out.
If Microsoft does identify Viodentia, the case can proceed. This would entail service of process and would involve thorny jurisdictional questions if Viodentia does not reside in or have sufficient ties to the US. In that case, even if the infringing acts alleged in the lawsuit occurred in the US, unless Viodentia can be prevailed upon to come to the US and be properly served, the case would likely be dismissed on grounds of forum non conveniens (inconvenient forum).
The critical importance of the subpoena power to Microsoft's case against Viodentia explains the otherwise-mysterious question of why Microsoft has filed a suit for copyright infringement rather than for circumvention of DRM. The subpoena power is a little-noticed feature that the DMCA added to copyright law. In the old days, ISPs often refused to disclose the identities of their users. Then along came the DMCA's 17 U.S.C. 512(h)(1), which enables a content owner to subpoena an ISP and demand user identities. This is crucial because ultimately, it is the only way to maintain a lawsuit and force a user like Viodentia to stop. But here's the problem: 512(h)(1) applies only to copyright violation and not to DRM circumvention. If it were only a matter of hacking WM, Microsoft would not be able to use a subpoena to identify Viodentia. Therefore, Microsoft must claim copyright infringement, whether or not that actually is the case.
In the meantime, Microsoft is issuing cease-and-desist letters to websites hosting FairUse4WM, alleging the same copyright infringement as alleged against Viodentia. It remains to be seen if Microsoft will attempt to advance its copyright argument against these websites by filing suit, or whether it will focus its efforts on Viodentia. Since websites hosting FairUse4WM cannot hide behind the fair use doctrine as noted above, those that are within Microsoft's legal reach will likely heed Microsoft's threats rather than be ensnarled in a costly legal battle. However, it is important to note that legal defeat has not magically eliminated the availability of similar DRM-stripping programs like DeCSS on the web. This may give some insight as to how effective current legal relief in the US and abroad will be once internet users take hold of a desirable new technology.
Is all of this still relevant if Microsoft intends to turn its back on PlaysForSure? Absolutely. Zune or no Zune, PlaysForSure is supposed to live on for its current partners. What's more, Microsoft's case against Viodentia will likely establish important legal precedent for actions against the creators of other current and future DRM-stripping programs. If you thought Microsoft's lawyers were scary, wait until you see Apple's.
FairUse4WM followup
We've received scattered reports that the final version of Windows Media Player 11 "fixes" FairUse4WM by not recovering the previous, broken keys; 11 now apparently AES encrypts keys, but fortunately that too has apparently been circumvented -- though not by Viodentia. Windows Media Player 10 users are still unaffected, and can technically feasibly continue use of the application, still at version 1.3. -Ed.
The press and blogosphere have recently been abuzz over programs that remove copyright protections technologies known as Digital Rights Management (DRM) from purchased or rented media files. These DRMs restrict a consumer's use of the media – morality notwithstanding, they are the only thing preventing you from copying your music or video files onto all of your friends' computers. DRM-stripping programs remove such restrictions from the file (and typically violate your terms of service agreement, to say the least). In September, Microsoft filed suit against the hacker(s) responsible for one such DRM-stripping program, FairUse4WM, purportedly created by the now notorious Viodentia. Other such programs reportedly target the DRM protections of the iTunes Music Store and AllOfMP3, among others. What will become of Microsoft's lawsuit? What does this have to do with "fair use" and the Digital Millennium Copyright Act (DMCA)? What follows is a brief overview in two parts. In the first, we'll discuss current issues surrounding fair use with regard to the DMCA, and in the second we'll approach Microsoft's legal actions against Viodentia for FairUse4WM.
What fair use is, and how it works alongside the DMCA
"Fair use" is a doctrine under US copyright law that permits certain acts that might otherwise be considered copyright infringement. Copyright law gives authors the right to exclude others from their work, and can sometimes get in the way of the ultimate goal of copyright, which is to promote progress in art and science. The theory here is that without copyright protections, many artists and authors would be discouraged from distributing their work. The fair use exception allows copyright protections to remain in place while enabling consumers some degree of freedom in their use of purchased media. For example, it was generally understood that ripping CDs for personal use was legal because it fell under the fair use exception. However, fair use was dealt a serious blow with the enactment of the DMCA in 1998 and the widespread use of DRM protections. Indeed, fair use is not a defense to a DMCA claim.
The DMCA specifically prevents someone from "circumvent[ing] a technological measure that effectively controls access to [copyrighted works]" without permission from the copyright owner (17 U.S.C.A. § 1201(a)(1)(A) & (3)(A)). It also prohibits a person from, among other things, making such a tool or offering it to the public (17 U.S.C.A. § 1201(b)(1)). This provision has given content providers the power to take legal action against virtually anyone who tampers with their DRM protections, even those who would have otherwise been protected under the fair use doctrine -- often times consumers like you.
A prime example of how courts have used this DMCA provision to strike down a DRM-removing technology involves DeCSS. As you might know, DeCSS removes the DVD content protection, or Content Scrambling System (CSS), essentially enabling anyone with a computer and a little know-how to rip DVDs. In the frequently cited case of Universal City Studios v. Corley 273 F.3d, 429 (2d Cir. 2001), the Second Circuit Court of Appeals affirmed a district court's ruling that barred Eric Corley -- aka Emmanuel Goldstein, publisher of the infamous 2600 hacker quarterly -- from making DeCSS available for download on 2600.com, or posting links to other websites offering the program for download. Among other things, the court rejected the idea that DeCSS could be protected under the fair use doctrine, reasoning that fair use is concerned with how one uses a copyrighted work, not how someone obtains the work in the first place. Thus, the court concluded that the right to view a DVD does not create a right to decrypt the DVD.
Because the DMCA doesn't distinguish between types of media involved or how protections are circumvented, the Corley case will most likely play a role in any future legal battle over DRM-stripping software. So far as FairUse4WM is concerned, the fair use doctrine would appear not give Viodentia (or users or distributors of the program) any protection against alleged DMCA violations, and FairUse4WM could suffer the same defeat in a US court as DeCSS. The European Union has enacted similar legislation to the DMCA, namely the 2001 EU Copyright Directive (EUCD). But Microsoft has admitted that it doesn't know Viodentia's location and has recently initiated action with Yahoo and Google to investigate. Legal defeat, however, has not at all magically eliminated the availability of DeCSS on the web. This may give some insight as to how effective current legal relief in the US will be once internet users take hold of a desirable new technology.
Have we seen the end of fair use? Current law still leaves a little wiggle room. While programs specifically designed to circumvent copyright protections have little chance of overcoming the DMCA, manual workarounds may still be legal. For example, most downloadable music services (begrudgingly) allow users to burn audio CDs from the music they buy. Doing so also strips the files of their DRM, but because users have permission to copy to CD, this use is acceptable under the DMCA. Re-ripping the CD back into unprotected audio files for personal use is probably acceptable under fair use or by some other right (the RIAA allows copying of CDs for personal use but not because of fair use). Whether courts would view this multi-step process as DRM "circumvention" under the DMCA has yet to be seen.
So where will the line between fair and illicit use eventually be drawn? The current legal incongruity between manual DRM workarounds and blatant DRM hacks reflects the questionable post-DMCA state of the fair use doctrine. Will this be enough to encourage lawmakers and courts to rethink their position on the DMCA? Only time will tell.
Microsoft takes legal action
On September 22, Microsoft filed a complaint against "John Does 1-10, a/k/a 'Viodentia'," alleging that Viodentia created and distributed software, FairUse4WM, that incorporates code from Microsoft's Windows Media Format SDK v. 9.5. Microsoft argues that Viodentia should therefore be held liable for copyright infringement. Filing an action against a John Doe is somewhat tricky in the American legal system; we have an adversarial legal system, and when you file against a John Doe, you're suing somebody whose identity you don't know and who's therefore not represented in court. One of the first steps, then, when suing a John Doe is to find out just exactly who you're suing. This is done through a third party discovery motion, which needs to be approved by the court. Accordingly, Microsoft filed a Motion for Leave to Conduct Third Party Discovery on September 26.
In granting the motion for third party discovery to identify Viodentia, Judge John Coughenour set explicit limits on who can be subpoenaed and what can be requested. Judge Coughenour allowed discovery against two named e-mail providers, Yahoo! and Google. Microsoft may only look for information that is reasonably likely to lead them to identify the user of the targeted IP address(es). Judge Coughenour also authorized a limited second level of discovery that works as follows: if Microsoft's Google and Yahoo! discovery uncovers an IP address relevant to the identification of Viodentia, Microsoft is permitted to issue subpoenas to the ISP that operates or issued that IP address in order to determine the identity of the user.
If Microsoft is unable to procure useful information from Google or Yahoo!, or if they run into a dead end at the ISP level, it will need to find some other means of identifying Viodentia. To expand the scope of its search, Microsoft would need to seek and receive further permission from the court. The present order gives Microsoft only 120 days to discover Viodentia's identity. Although Microsoft can seek a time extension, if it cannot name an actual person in its suit before Judge Coughenour's patience wears out, the case will likely be thrown out.
If Microsoft does identify Viodentia, the case can proceed. This would entail service of process and would involve thorny jurisdictional questions if Viodentia does not reside in or have sufficient ties to the US. In that case, even if the infringing acts alleged in the lawsuit occurred in the US, unless Viodentia can be prevailed upon to come to the US and be properly served, the case would likely be dismissed on grounds of forum non conveniens (inconvenient forum).
The critical importance of the subpoena power to Microsoft's case against Viodentia explains the otherwise-mysterious question of why Microsoft has filed a suit for copyright infringement rather than for circumvention of DRM. The subpoena power is a little-noticed feature that the DMCA added to copyright law. In the old days, ISPs often refused to disclose the identities of their users. Then along came the DMCA's 17 U.S.C. 512(h)(1), which enables a content owner to subpoena an ISP and demand user identities. This is crucial because ultimately, it is the only way to maintain a lawsuit and force a user like Viodentia to stop. But here's the problem: 512(h)(1) applies only to copyright violation and not to DRM circumvention. If it were only a matter of hacking WM, Microsoft would not be able to use a subpoena to identify Viodentia. Therefore, Microsoft must claim copyright infringement, whether or not that actually is the case.
In the meantime, Microsoft is issuing cease-and-desist letters to websites hosting FairUse4WM, alleging the same copyright infringement as alleged against Viodentia. It remains to be seen if Microsoft will attempt to advance its copyright argument against these websites by filing suit, or whether it will focus its efforts on Viodentia. Since websites hosting FairUse4WM cannot hide behind the fair use doctrine as noted above, those that are within Microsoft's legal reach will likely heed Microsoft's threats rather than be ensnarled in a costly legal battle. However, it is important to note that legal defeat has not magically eliminated the availability of similar DRM-stripping programs like DeCSS on the web. This may give some insight as to how effective current legal relief in the US and abroad will be once internet users take hold of a desirable new technology.
Is all of this still relevant if Microsoft intends to turn its back on PlaysForSure? Absolutely. Zune or no Zune, PlaysForSure is supposed to live on for its current partners. What's more, Microsoft's case against Viodentia will likely establish important legal precedent for actions against the creators of other current and future DRM-stripping programs. If you thought Microsoft's lawyers were scary, wait until you see Apple's.
FairUse4WM followup
We've received scattered reports that the final version of Windows Media Player 11 "fixes" FairUse4WM by not recovering the previous, broken keys; 11 now apparently AES encrypts keys, but fortunately that too has apparently been circumvented -- though not by Viodentia. Windows Media Player 10 users are still unaffected, and can technically feasibly continue use of the application, still at version 1.3. -Ed.
This piece by the STLR Engadget Team was led by Columbia STLR contributors Scott McMillan, Zachary Sharpe, and Trevor Adler.
In all reality, the true purpose of FairUse4WM is really to allow you to use your purchased audio files on any media player. I don't hink that the first use of it was for piracy, much like the use of the iTunes DRM stripper wasn't just to pirate music.
If peopel REALLY wanted free music, they would go ahead and download it for free using any P2P program out there. The sole reason why i don't immerse myself in any DRM program is the fact that my use of the music may be hindered by very restrictive DRM. Buying my MP3's from a russian site that says "Pay me, here's a file, go all willy nilly" sounds better than "Pay me, here's a file that works on a certain amount of players."
I don't think there would be such an opposition to DRM if more thought went into end user solutions instead of making a haphazard system and claiming that piracy is killing the music industry when there's a "working" alternative. Aggravation is what pushes people to downlaod music for fre, not that it's "free". That may have been the reason in the mid to late 90s, but now people actually want to pay for music, but are hindered by complicated DRM.
The only exception to this is iTunes, but then you are locked into buying all Apple products (or trying to find other players that support AAC). While this may work for some people, what is a person like me, who doesn't want to by an iPod, supposed to do?
Ryan,
Has MS contacted you or Peter for info on Viodentia?
I recently had a large proportion of my licences that would not renew when re-importing my legalally aquired digital music onto my computer after a reinstall of Win XP and I backed my licneces up as well as my music ,it took two weeks for the content service and thier DRM Clearance Service to fix this issue and I know the Developers of the Service .
One of the developers quipped that that I should of just striped the DRM before reinstaling the OS :P ,so now I no longer have DRM issues and I now have 500+ DRM free songs .
"The DMCA specifically prevents someone from "circumvent[ing] a technological measure that effectively controls access to [copyrighted works]" without permission from the copyright owner..."
If someone is able to circumvent the technological measure then it isn't effective, is it?
IMHO the only way to effectively make a piece of media 'secure' is to make it unusable--not able to be seen or heard by a human. As soon as it's viewable or audible it is subject to the analog hole, and there is no effective technological way around this. MS et al could spend tens of billions on uber-DRM, but that won't stop anyone from recording the screen with a camcorder or putting a mic up to the speaker.
I'd have less of a problem if the RIAA would just admit that music with DRM is worth less than music without DRM. If the RIAA charged less for DRM'ed CD's than open CD's, consumers might willingly buy them and "solve" the piracy problem.
I stopped buying CD's because I am tired of paying the same prices for the same product I bought 20 years ago. DVD's are better and cheaper than the Laser disks they replaced, so I am willing (but not happy) to accept that DVD's are DRM'ed while Laser disks were freely copyable.
Give me something in exchange for DRM. iTunes and other online services are now offering a slightly lower price, offset by low quality (lossy compression) and restrictive DRM; I'll consider buying music again when better quality and less restrictive DRM are offered for those lower prices.
Kudos to engadget! This is what keeps me reading your site more than anything else... This is high-quality content beyond typical uninformed "IANAL/IANAS/IANA*" geek speculation. Keep up the good work, guys!
(...I feel like I should put a link to some kind of medication in this comment, it's too similar to all of the spam on my blog)
Very well written and explains all of the details surrounding "fair use"
I really think fair use is under the microscope and at this point, is so narrow in what's acceptable, that it's no surprise that companies like Microsoft really don't care about fair use.
My personal feeling on fair use is that people, regardless of any details or additions to the DMCA, individuals will still want to find fair and open ways to protect their purchases.
I apprecaite these programs that are out there because they really do work for those of us that are honest and just wanting a way to make backups that don't lock us into a single system.
This is a great article with some very informative legal insights - it's given me a handle on where to look in the USC/USCA to find out more about the DMCA. Thanks to Engadget and the team at Columbia!
However, it could be more tightly edited. The sentences: "Legal defeat, however, has not at all magically eliminated the availability of DeCSS on the web. This may give some insight as to how effective current legal relief in the US will be once internet users take hold of a desirable new technology" (para. 5) appear almost verbatim in the 13th paragraph.
So does this mean there will be a rising surge for servers and ISP's located in non-extradition countries? There could be alot of money made there if someone knew what to do (ie: not me).
But honestly....MS is going to have this case thrown out because they will most likely not find the person and what's to say that some ISP in a foreign country even has to respect a US Subpoena. Its ludicrous to think that the US Legal System has such "far reaching implications" on stuff like this as though we trump all other laws in foreign nations to help out US companies further dominate the market.
FU4WM stills works for me with WMP 11.
MS will lose.
This is GREAT!
Thank you engadget for such an informative and enlightening article!
I doubt the authors of Viodentia will be found, unless they are stupid (which i doubt)...
Its not too hard to use an anonymous proxy such as TOR... Should be interesting how things turn out... I hope it gets ugly! it would be fun to watch! lol
Thank you Engadget for a layman's explanation of an otherwise esoteric topic.
For those that have not discovered the less expensive, DRM-free, legal alternative to iTunes, Napster, etc., head over to:
http://www.allofmp3.com/
We will soon have a new congress and senate; we all need to tell our representatives that we think that copyright laws are broken. We need to have the DMCA repealed, it clearly blocks fairuse. In addition patent law is now swayed towards big corporations too. Laws for both of these were meant to promote invention and improve public well-being, the laws passed since the Sonny Bono Act have degraded our rights to the point were we have none, don't believe me, look at Epson and HP both suing companies that allow you to refill their overpriced products. The idea of licensing music so that you don't actually own it was very clever, only lawyers could come up with the idea of paying for something that in the end is not even yours. I urge everyone to at least write their representatives and tell them that you are sick of the laws that were meant to protect them from corporations being used to secure profits indefinitely.
[quote]If it were only a matter of hacking WM, Microsoft would not be able to use a subpoena to identify Viodentia. Therefore, Microsoft must claim copyright infringement, whether or not that actually is the case.[/quote]
This is effectively accusing Microsoft's lawyers of violating Rule 11 of the Federal Rules of Civil Procedure, which (in general) requires that a lawyer have a good-faith basis for believing there is legal authority for relief he's seeking before he signs a pleading seeking that relief.
Microsoft doesn't hire shopping center lawyers.
I'm not a copyright or intellectual property specialist, but I am a former federal circuit court clerk who's practiced in state and federal court for 25 years. And while you're certainly correct that taking discovery before a defendant has been identified, served with process, and answered is unusual and requires a discretionary ruling by the federal district court, I'm not aware of any statutory language or precedent that makes the Federal Rules of Civil Procedure [i]inapplicable[/i] to actions brought under the DMCA. And yes, [url=http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html]17 U.S.C. § 512(h) authorizes "copyright owners" to seek subpoenas. But so does [url=http://www.law.cornell.edu/rules/frcp/Rule30.htm]Rule 30(a)(1)[/url] of the Federal Rules of Civil Procedure (in combination with Rule 45 and, here, Rule27(a).
In other words, as a general rule, in any case in federal court, any party can have the Clerk issue a subpoena compelling a non-party witness to appear and give testimony, and to bring with him specified documents (e.g., computer files showing IP addresses, ISP subscribers, etc.) -- in [i]any[/i] sort of civil lawsuit. What's your authority saying that a plaintiff filing suit under the DMCA [i]can't[/i] do that?
I'll also grant you that ISPs and companies like Google and Yahoo! typically resist such non-party subpoenas as a matter of principle based on their users/subscribers' privacy concerns. That means they'd have the burden of filing a motion to quash and persuading the judge hearing that motion (who might be either the judge in whose district the case is pending or the judge in the district where the non-party witness resides) that those privacy rights outweigh the plaintiff's legitimate need to acquire the information. A judge might inquire whether there are less intrusive means to acquire the same information; Microsoft can probably establish that there aren't any. And the "privacy rights" at issue here are not constitutional in nature: You have no expectation of privacy under Fourth Amendment law in the commercial records of your ISP (or the phone company or your video rental store). I'll also grant you that the purpose and likely effect of 17 U.S.C. § 512(h) is to tip the balancing act of privacy versus plaintiffs' need to know in favor of [i]copyright[/i] plaintiffs; I haven't looked at the legislative history, and don't know if the actual language was just inept, or the product of some deliberate compromise.
But show me the statute or case that says a federal district judge lacks discretion to order a non-party witness like Google or Yahoo! or AT&T to produce duly-subpoenaed, highly relevant records that will reveal critical information without which a statutorily created cause of action can't proceed. Then I'll believe you got this right.
Dude, I know Trevor! He's a badass and all the ladies love him!!!
Sexilicious!