The problem of illegal file-sharing and related acts of Internet infringement is one of the most important copyright challenges of the day. Not only does such activity threaten the property interests of copyright owners, but given the attendant prospect of vicarious copyright infringement liability that confronts Internet Service Providers (ISPs), this conduct also threatens the vitality of the Internet as a whole. In 1998, Congress undertook to address this issue by passing the Online Copyright Infringement Liability Limitation Act, Title II of the Digital Millennium Copyright Act (Liability Limitation Act). The principal purpose of the Liability Limitation Act is to remove ISPs from the copyright infringement litigation battles which inexorably arise between copyright owners and unauthorized file-sharers of their works. Under the Liability Limitation Act, so long as an ISP conducts its service in accordance with the Act's requirements, which include removing infringing material from the Internet and disclosing the identities of suspected unauthorized file-sharers and other infringers, the ISP is essentially immune from vicarious liability claims. Some recent court decisions interpreting the Liability Limitation Act, however, threaten this pragmatic balance of the pertinent Internet constituent interests. At least two federal circuits have construed a purported ambiguity in the language of the Act, so as to hold that certain kinds of ISPs are not required to disclose the identities of suspected infringers in response to subpoenas issued under the Act. Under these holdings, copyright holders are instead required to involve ISPs in copyright litigation and discovery, solely to obtain the identities of suspected infringers. This Article proposes that these court decisions misconstrue the terms of the Liability Limitation Act, and contravene the express objectives of the statute. This misconstruction of the Act needlessly entangles ISPs in infringement disputes in which they have no immediate stake, and further, does little to enhance legitimate Internet user privacy interests, because it affords ISP subscribers no greater legal protection than already provided under the law. Moreover, by impeding infringer identity disclosure, this judicial course not only increases the costs involved in the inevitable disclosure of infringer "cyber-pseudonym" identities, it also facilitates socially undesirable and morally debilitating conduct, ultimately burdening the Internet community as a whole. Accordingly, future courts should reject these rulings, and construe the Liability Limitation Act to require all ISPs to disclose subscriber identities in response to subpoenas issued thereunder. This would preserve the proper balance between copyright holder property rights and Internet user privacy interests, and further, impose the responsibility for preventing or redressing Internet infringement where Congress intended: on copyright holders and infringing Internet users, and not on ISPs and the overall Internet community.
