District Court Rules DMCA Subpoenas Available for P2P Infringers

January 21, 2003. The U.S. District Court (DC) issued its opinion in RIAA v. Verizon, ruling that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. Verizon had argued that 512(h) subpoenas were only available with respect to infringers who stored infringing content on the servers of the ISP.

While the Recording Industry Association of America (RIAA) could obtain a subpoena by other means, this holding is significant because Section 512(h) provides a fast and efficient means of obtaining subpoenas for ISP's information that identifies infringers. In particular, it requires no notice to, or opportunity to be heard by, the alleged infringer.

Verizon stated that it will appeal.

Statute. § 512 provides ISPs a safe harbor from liability for infringement based on the activities of their users. There are four specific limitations on liability. § 512(a) pertains to "transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections". § 512(b) pertains to "the intermediate and temporary storage of material on a system or network". § 512(c) pertains to "material that resides on a system or network controlled or operated by or for the service provider". And, § 512(d) pertains to "referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link".

Subsection 512(h) then provides, in part, that "A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection." The statute then provides that the requester should also provide a copy of the 512(c)(3) notice, a proposed subpoena, and a sworn declaration. However, the statute does not expressly limit the availability of 512(h) subpoenas to 512(c) situations.

Subsection 512(h)(5) then provides, in part, that "Upon receipt of the issued subpoena, ... the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification."

Background. The Recording Industry Association of America (RIAA) alleges that a Verizon user has used Verizon's network to download copyrighted songs with peer to peer file copying software provided by Kazaa. It obtained a 512(h) subpoena, and served it upon Verizon. Verizon refused to comply. It stated in an August 6, 2002 letter that 512(h) subpoena power applies only if the infringed material is stored or controlled on the service provider's system or network under 512(c). See also, TLJ story titled "Verizon and Privacy Groups Oppose RIAA Subpoena", August 30, 2002.

The RIAA possesses only Internet Protocol (IP) number information on infringers. Verizon possesses information that would associate subscriber information with IP number information. That is, obtaining Verizon's information would enable the RIAA, or its members, to file complaints alleging infringement against the individual infringers.

Holding. The District Court, Judge John Bates (at right) presiding, wrote a 39 page opinion in which it held, based upon both statutory construction, and the legislative history and purpose of the statute, that 512(h) subpoenas are available when the alleged infringer merely uses the ISP's network to transfer infringing content. The content need not be stored on the ISP's servers.

The Court concluded that "Based on the language and structure of the statute, as confirmed by the purpose and history of the legislation, the Court concludes that the subpoena power in 17 U.S.C. § 512(h) applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user. Therefore, the Court grants RIAA's motion to enforce, and orders Verizon to comply with the properly issued and supported subpoena from RIAA seeking the identity of the alleged infringer."

It added that "Here, the statutory language and structure lead to a single result – the section 512(h) subpoena authority applies to service providers within not only subsection (c) but also subsections (a), (b), and (d) of section 512."

The Court elaborated that "Because peer-to-peer users most often swap materials over the Internet that are stored on their own computers -- not on the service providers' networks -- such activity is within subsection (a), not subsection (c). Thus, under Verizon's reading of the Act, a significant amount of potential copyright infringement would be shielded from the subpoena authority of the DMCA. That would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish. The Court can find nothing in the language or structure of the statute that suggests Congress intended the DMCA to protect only a very limited portion of copyrighted material on the Internet." (Footnote omitted.)

The Court also examined the legislative history and purpose of Section 512. It wrote that "Congress thus created tradeoffs within the DMCA: service providers would receive liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers' systems. At the same time, copyright owners would forgo pursuing service providers for the copyright infringement of their users, in exchange for assistance in identifying and acting against those infringers."

The Court continued that "Congress was concerned about the ability of copyright owners to protect their creative investments in light of rapid technological innovations on the Internet that make copyright theft easy, virtually instantaneous, and undetectable. Therefore, in exchange for the liability protections afforded to service providers in subsections (a) through (d) of the DMCA, Congress sought through subsection (h) to require service providers to assist copyright owners in identifying infringers using the service providers' systems. If, as Verizon contends, service providers only have such obligations when the infringing material is stored on their systems, then service providers falling within subsection (a) -- a large portion of those addressed by the DMCA -- would receive the liability protections of the Act without the corresponding obligation to assist copyright owners in identifying infringers. There is no logical connection between the line Verizon seeks to draw and the objectives Congress sought to achieve through the DMCA. Verizon's reading would thus undermine the balance Congress established in the DMCA, and does not comport with the Act's purpose and history."

Reaction. RIAA President Cary Sherman stated in a release that "We appreciate the court's decision, which validates our interpretation of the law. The illegal distribution of music on the Internet is a serious issue for musicians, songwriters and other copyright owners, and the record companies have made great strides in addressing this problem by educating consumers and providing them with legitimate alternatives. Now that the court has ordered Verizon to live up to its obligation under the law, we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal."

Verizon VP and Associate General Counsel Sarah Deutsch stated in a release that "The court's decision has troubling ramifications for consumers, service providers and the growth of the Internet. It opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts. This case will have a chilling effect on private communications, such as e-mail, surfing the Internet or the sending of files between private parties."

Deutsch added that "Verizon is not attempting to shield customers who break copyright laws. We are, however, seeking to protect the fundamental privacy and due process rights that should be afforded to our customers and all Internet users. We will appeal the decision."