Advanced Copyright Issues on the Internet - Fenwick & West LLP

distribute a copy of a notice specified by the court to each Doe defendant within seven days ofservice of the subpoena. The notice informed each defendant that a subpoena disclosing thedefendant’s identity had been sought and that his or her name had not yet been disclosed, butwould be within 21 days if he or she did not challenge the subpoena. The notice contained a listof legal resources who might be able to help the defendant fight the subpoena. The noticefurther informed the defendant that if he or she did not live or work in Pennsylvania, or visit thestate regularly, he or she might be able to challenge the Pennsylvania court’s jurisdiction overhim or her. Finally, the notice informed the defendant that the record companies were willing todiscuss the possible settlement of their claims with the defendant, that the parties might be ableto reach a settlement agreement without the defendant’s name appearing on the public record,that the defendant might be asked to disclose his or her identity to the record companies if he orsought to pursue settlement, and that defendants who sought to settle at the beginning of a casemight be offered more favorable terms by the record companies. 1064(7) Interscope Records v. Does 1-7In Interscope Records v. Does 1-7, 1065 the court followed the Charter Communicationsand Verizon cases in holding that Section 512(h) does not authorize the issuance of subpoenasagainst Section 512(a) OSPs who act merely as conduits. 1066 The plaintiffs had sought such asubpoena against the College of William and Mary, which provided Internet services that theDoe defendants allegedly used to access a peer-to-peer online media distribution system for thepurpose of downloading and distributing plaintiffs’ copyrighted works. 10679. Proposed Limitation of Scope of Shrinkwrap and Clickwrap LicensesThat Did Not PassH.R. 3048 contained an interesting and potentially controversial provision that wouldhave extended the scope of the preemption provisions of the copyright statute to limit certainprovisions common to shrinkwrap and clickwrap license agreements. Specifically, H.R. 3048would have added the following provision at the end of Section 301(a) of the copyright statute:When a work is distributed to the public subject to non-negotiable license terms,such terms shall not be enforceable under the common law or statutes of any stateto the extent that they –(1) limit the reproduction, adaptation, distribution, performance, ordisplay, by means of transmission or otherwise, of material that isuncopyrightable under section 102(b) or otherwise; or1064 Order, Elektra Entertainment Group, Inc. v. Does 1-6, Civ. Action No. 04-1241 (Oct. 13, 2004). The languageof the court’s order, without the notice attached, may be found at 2004 U.S. Dist. LEXIS 22673.1065 494 F. Supp. 2d 388 (E.D. Va. 2007).1066 Id. at 388.1067 Id.- 244 -