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Recording Industry Ass'n. of America v. Verizon Internet Services

2003 U.S. Dist. Lexis 681, 240 F. Supp. 2d 24 (D.D.C., Jan. 21, 2003), reversed, 351 F. 3d 1229 (D.C. Cir., Dec. 19, 2003) cert. denied 125 S.Ct. 309 (2004).

Court holds that copyright holder has the right under the Digital Millennium Copyright Act ("DMCA") to compel service provider to produce information which identifies individual who allegedly transmitted infringing materials over service provider's network.  Court accordingly grants motion by the Recording Industry Association of America ("RIAA") to compel Verizon Internet Services ("Verizon") to comply with a subpoena, and produce information which will identify a Verizon customer who used KazaA to download MP3 files.

An individual, utilizing Verizon as his Internet Service Provider, allegedly used the peer-to-peer software of KazaA to download approximately 600 copyrighted recordings by well-known artists from computers of third parties.  This material was not alleged to be stored on Verizon's network.  Rather, Verizon's only involvement in this individual's activities was to provide his connection to the Internet.

On behalf of the holders of the copyrights in the down loaded songs, RIAA served a subpoena on Verizon under 17 U.S.C. § 512(h) of the DMCA, seeking information that would identify this individual.  Arguing that the DMCA did not authorize the issuance of such a subpoena given the nature of Verizon's involvement in the infringing activities, Verizon refused to comply.  The Court rejected Verizon's argument, and directed it to produce the materials called for in the subpoena.

The DMCA provides protection for Internet "service providers" passively involved in the activities of third parties which, in turn, infringe copyrights.  Sections (a) through (d) of the §512 describe the four types of activities protected under the statute, and set forth the conditions the service provider must meet to achieve the statute's protection from monetary liability for copyright infringement.

§512(a) provides protection for service providers when infringing materials are transmitted over their network by third parties.  §512(c) provides protection when infringing material is stored on the service provider's network by third parties.

The RIAA argued that 17 U.S.C. § 512(h) gave it the authority to issue the subpoena at issue.  The Court agreed, and directed Verizon to comply with the RIA's subpoena.  Section 512(h) provides:

(h) Subpoena to identify infringer. -

     (1) Request. - 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.

     (2) Contents of request. - The request may be made by filing with the clerk -

     (A) a copy of a notification described in subsection (c)(3)(A);

     (B) a proposed subpoena; and

     (C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

     (3) Contents of subpoena. - The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

     (4) Basis for granting subpoena. - If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

     (5) Actions of service provider receiving subpoena. - Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), 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.

     (6) Rules applicable to subpoena. - Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

In reaching its conclusion, the Court relied heavily on §512(h)'s use of the term "service provider."  §512(h) provides that the Clerk of the Court will issue a subpoena to a "service provider" for documents identifying the alleged infringer, with which subpoena the "service provider" shall expeditiously comply.  The statute contains two distinct definitions of "service provider."  One, found in § 512(k)(1)(a), is applicable to section (a) of the statute.  The other, found in § 512(k)(1)(b), is applicable to the balance of the statute, including §512(h).  This latter definition encompasses all service providers to whom § 512 applies, including those identified in § 512(k)(1)(a):

(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

Finding the definition of "service provider" set forth in § 512(k)(1)(b) applicable to § 512(h), the Court accordingly held § 512(h) was applicable to all "providers of online services or network access, or the operator of facilities therefore," whether their involvement in the infringing activities in question fell within the of the ambit of § 512(a) or any other provision of the statute.

In reaching this result, the Court rejected Verizon's argument that a subpoena under § 512(h) could only be issued to a service provider falling within the scope of §512(c) as a result of the storage of infringing materials on its network by a third party.  Verizon premised it's argument on 512(h)'s requirement that a party seeking to issue a subpoena under Section 512(h) file with the clerk a notice that complies with §512(c)(3)(A).  This notice is designed to alert the service provider to the infringement taking place on its network, and must include identification of the infringing materials that are to be removed from the network, or as to which access is to be disabled.  While such a notification is a prerequisite to relief under §512(c), and, in certain circumstances, §512(b) and (d), no such notice is required under 512(a).  Verizon accordingly argued that the subpoena power under 512(h) was limited to those service providers seeking protection under §512(c) as a result of the storage of infringing materials on their network.  Given that Verizon's participation in the allegedly infringing activities was via its transmission of the infringing materials, and not via their storage on its network, Verizon argued that it could not be issued a subpoena.

The Court disagreed.  If Congress meant to render §512(h) applicable only to certain service providers, such as those seeking protection under 512(c), and not others, it would have made the same clear in the language of §512(h), rather than title it a "Subpoena to Identify Infringer."  Congress chose not to do so, indicating its intention to render 512(h) applicable to all service providers.  The Court further found its interpretation of § 512(h) consistent with Congress' intent as reflected in the legislative history of the statute, in which the Court found no evidence that Congress sought to treat service providers differently based on the nature of their alleged involvement in the infringing activities.

Finally, the Court discussed, without deciding, First Amendment challenges to the DMCA raised in various amicus briefs.  Because such arguments were neither raised nor fully briefed by Verizon, the Court held it was not obligated to resolve them.  It noted, however, that the First Amendment does not protect copyright infringement and that downloading songs from the Internet was not "an instance where the anonymity of an Internet user merits free speech and privacy protections."  The Court further noted that "the [constitutional] issues raised do not reveal an obviously fatal constitutional flaw in the subpoena process available under the DMCA."

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