ACTA Fool Or: How Rights Holders Learned to Stop Worrying and Love 512's Subpoena Provisions

I. "2 FAST, 2 FURIOUS" OR INTRODUCTION II. "SOME FOOLS SLIPPED UP AND OVER STEPPED THEIR BOUNDARIES" OR: CURRENT U.S. LAW III. "IT SEEMS THEY WANNA FINGER PRINT ME AND GIMME SOME YEARS" OR: THE ACTA AGREEMENT IV. "YOU'LL BE LIKE LIL. JOHN Q. PUBLIC AND GET A CHANGE OF HEART" OR: WHY NO ACTA NEEDED V. "2 FAST ... ACT A FOOL" OR: CONCLUSION I. "2 FAST, 2 FURIOUS" (1) OR INTRODUCTION In retrospect, 1998 was an age of innocence. On television, Dawson's Creek was one of the number one shows, (2) Shakespeare in Love upset Saving Private Ryan to win the Academy Award for Best Picture, (3) and the Britney Spears song 'Baby One More Time' rocketed up the Billboard Charts. (4) The internet was a relatively new feature in many homes and investors poured money into companies expecting that the internet represented a revolutionary new business model. (5) Conventional analog computer modems connected more than 90% of the world's internet users, (6) and new personal computers sold for less than $2,000 with 333 megahertz processors, and 4.3 billion-byte (4.3 giga-byte) hard-drives. (7) The year was conspicuous as a harbinger of issues which continue to pervade and provoke debate. The first MP3 players appeared on store shelves. (8) A website scooped print journalists with news of the love affair between Monica Lewinski and President Bill Clinton. (9) Steve Jobs returned to Apple Computers and asked the world to 'think different' as he introduced the first i-product, the iMac. (10) The years waning months witnessed the dawn of Google (11) and the beginning of the googlization of everything. (12) During this romantic period, Congress passed the Digital Millennium Copyright Act (DMCA). (13) Thrust into a world of rapidly changing technology, the DMCA sought to implement U.S. treaty obligations and address the problem of copyright infringement in a world of increasingly digital communications. (14) Congress intended the DMCA to serve two primary purposes: (l) to protect the interests of the content industries and (2) to limit the liability of service providers (ISPs) for acts of copyright infringement by customers using the providers' systems or networks. (15) However, by the time the law took effect, the legislation was already largely ineffective against new technologies allowing the piracy (16) of copyrighted works. Copyright piracy comes in two flavors: physical piracy and internet piracy. Physical or hard goods piracy entails the creation and distribution of unauthorized physical copies of copyrighted materials. (17) Conversely, internet piracy involves the use of the internet to circumvent technical protection measures or replicate intellectual property. (18) Typically motivated by a drive to impress others without financial gain, individuals share infringing files on peer-to-peer (p2p) networks that span the globe. (19) The simplicity and rampant use of p2p networks to swap infringing files has diminished the value of copyrighted works and an authors' ability to profit. (20) User activities on p2p networks have not gone unnoticed by rights holders. (21) With each courtroom victory, the architecture of these p2p systems evolves, frustrating rights holders' ability to halt users from sharing content. (22) Falling outside the DMCA subpoena provisions, the current p2p architecture, bittorrent, (23) requires rights holders file 'John Doe' lawsuits to identify infringers and enforce their rights. (24) While the networks are global, the DMCA and John Doe lawsuits are limited to the jurisdiction of the United States, a lesson rights holders have difficulty understanding. (25) Rights holders eventually understood that the DMCA only applied in the United States and hatched a scheme to take U.S. law global. Instead of using existing mechanisms in the World Intellectual Property Organization or the World Trade Organization, (26) rights holders went to their representative, the U. …