* RIAA v. Verizon - On January 21, 2003 the U.S. District Court for the District of Columbia ruled that Section 512(h) of the DMCA required Verizon to comply with a subpoena demanding that it reveal the identity of a user of its Internet services who the RIAA alleged had made about 600 copyrighted song files available to other users of Kazaa P2P software. Section 512(h) provides a means by which a copyright holder can obtain a subpoena simply by filing infringement allegations with the clerk of the court. Verizon contended that this expedited procedure was only available where infringing material was stored on its servers, and that the RIAA should proceed by filing a "John Doe" subpoena request for review by a judge. However, the Court ruled that this expedited process was available against any subscriber connected to an Internet Service Provider (ISP), raising the prospect that major copyright holders using automated "bots" that seek out the Internet Protocol (IP) addresses of P2P software users could deluge ISPs with hundreds or even thousands of identification subpoenas. This has raised concerns among ISPs regarding administrative costs and customer relations, as well as general privacy concerns. Verizon has appealed the Court's ruling and has asked that the order to reveal the subscriber's identity be stayed pending its outcome. Regardless of the outcome of the case, Verizon and other telecommunications firms and ISPs may well seek Congressional clarification of the scope of the Section 512(h) subpoena power.

* Lexmark International v. Static Control Components Inc. - This potentially important case was filed in the Eastern District of Kentucky on December 30, 2002. The plaintiff, a manufacturer of printer ink cartridges, charges that a competitor's reverse engineering of copyrighted software that enables communication between the printer and cartridge is a violation of the DMCA's anti-circumvention provision. The case is similar to Chamberlain Group v. Skylink Technologies, filed in the Northern District of Illinois last September. There, plaintiff manufacturer of garage door openers is suing a rival producer of remote control devices under the DMCA for circumventing software controlling the operation of the door openers. While Congress only intended to protect non-functional content under the DMCA, plaintiffs' successful reliance on its literal language could have profound results. A wide array of manufacturers, such as automakers, could use copyrighted software to prevent the utilization of competitive aftermarket parts by their customers, and such a result could well prompt Congressional revision of the anti-circumvention clause.

Additional Factors

Aside from pending legislation and ongoing litigation, a number of other factors may affect the continuing debate over digital copyright policy. They include:

* International harmonization - One of the content industry's major claims in pushing through the Term Extension Act and the DMCA was that these changes in copyright law were required to harmonize U.S. laws with those of the European Union (EU). However, the EU declined to extend copyright terms and, as a result, many early 1950s sound recordings that remain subject to U.S. copyright protections are entering the public domain in the EU. Additionally, despite heavy entertainment industry lobbying the EU's proposed revision of copyright law rejects many of the DMCA's more controversial provisions, especially those that can be used to prosecute individuals using P2P software.