President Bush’s pick to succeed Justice Sandra Day O’Connor was part of the three-judge panel that threw out a section of the Digital Millennium Copyright Act that would have given entertainment companies an expedited way to identify alleged copyright pirates on the Internet.
In a December 2003 ruling, Judge John Roberts joined two other appellate court judges in overturning a ruling that the DMCA subpoena was constitutional. Roberts was nominated to the Supreme Court by Bush on Tuesday.
In its opinion, the panel dismissed arguments by the RIAA that P2P services are simply an extension of the central-server technology that was around when Congress approved the DMCA in 1998. The DMCA subpoena requires Internet service providers to turn over the identity without a judge’s order. The panel rejected one of the RIAA’s key arguments that the subpoenas were legal even if the P2P technology wasn’t invented when the DMCA was approved.
"The RIAA argues that the definition of ‘Internet’ service provider (in the law is) applicable to an ISP regardless what function it performs with respect to infringing material — transmitting it … caching it … hosting it … or locating it," Judge Douglas Ginsburg wrote for the panel. "This argument borders upon the silly."
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