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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Recording Industry Association of America v. Verizon Internet Services

351 F.3d 1229, Case No. 03-7015 (D.C. Cir., December 19, 2003) cert denied 125 S.Ct. 309 (2004)

Reversing the court below, the D.C. Court of Appeals holds that a copyright holder may not, under the Digital Millennium Copyright Act ("DMCA"), serve a subpoena seeking the identity of an individual who allegedly transmitted infringing materials over a P2P file sharing network, on the Internet Service Provider which provides that individual's connection to the Internet.  The Court accordingly granted the motion of Verizon Internet Services ("Verizon") to quash subpoenas issued by the Recording Industry Association of America ("RIAA") seeking information that would identify Verizon customers who, via a connection to the Internet provided by Verizon, used P2P networks to share MP3 files.  The RIAA has sought to issue subpoenas under the DMCA, in part, because it could do so without the necessity of first commencing a litigation.  The court's ruling obligates the RIAA either to commence such a litigation, or seek leave of the court, before serving such a subpoena on ISPs like Verizon.

An individual, utilizing Verizon as his Internet service provider, allegedly used the peer-to-peer software Kazaa to download approximately 600 copyrighted recordings by well-known artists from computers of third parties.  This material was not stored on Verizon's network.  Rather, Verizon's involvement was limited to providing this individual's connection to the Internet.

On behalf of the holders of the copyrights in the downloaded songs, the RIAA served a subpoena on Verizon under 17 U.S.C. § 512(h) of the DMCA, seeking information that would identify this individual.  Disagreeing with the court below, the D.C. Court of Appeals held that such "a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing …".  As Verizon's only involvement was to provide the Internet, connection via which an individual engaged in allegedly infringing activity accessed the Internet, and not in storing infringing material on its system, or in providing links thereto, it could not be compelled to comply with a subpoena issued under 17 U.S.C. § 512(h).

The Court of Appeals found that its determination was supported by the statutory language of 17 U.S.C. § 512(h).  To obtain a subpoena under that statute, a copyright owner must provide the Clerk of the Court with "a copy of a notification described in [17 U.S.C. § 512](c)(3)(A); [the] proposed subpoena, and 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 purposes of protecting rights under this title."  17 U.S.C. § 512(h)(2).

The notification described in §512(c)(3)(A) is designed to permit "innocent" Internet service providers to escape monetary liability for the infringing activities of others if the ISP assists in terminating such activities.  Among other things, the notification must identify "the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material."  Because an ISP that is not involved in the storage of infringing materials cannot remove such materials from its system, or disable access thereto, that ISP cannot receive a qualifying notice under §512(c)(3)(A), and therefore is not an appropriate recipient of a 512(h) subpoena.  Said the Court:

Verizon maintains the two subpoenas obtained by the RIAA fail to meet the requirements of § 512(c)(3)(A)(iii) in that they do not - because Verizon is not storing the infringing material on its server - and can not, identify material "to be removed or access to which is to be disabled" by Verizon.

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Infringing material obtained or distributed via P2P file sharing is located in the computer (or in an off-line storage device, such as a compact disc) of an individual user.  No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers.

In reaching this result, the Court rejected the RIAA's contention that Verizon can "disable access" to the infringing material within the meaning of § 512(c)(3)(A) by terminating the offending subscriber's Internet account.  The Court premised this determination on the statute's distinction between "providing access to infringing material" 512(j)(1)(A)(i) and "providing access to a subscriber or account holder … who is engaging in infringing activity … by terminating the accounts of the subscriber or account holder."  512(j)(1)(a)(ii).

These distinct statutory remedies establish that terminating a subscriber's account is not the same as removing or disabling access by others to infringing material resident on the subscriber's computer.

The Court also found support for its conclusion in the structure of Section 512.  Sections 512(b), (c) and (d) of the Act permit ISPs engaged in caching, storage or linking to infringing materials, respectively, to escape monetary liability for infringing activities if they respond appropriately to take-down notices that comply with § 512(c).  Each of these subsections of the statute contain references to 512(c).  Such take-down procedures do not apply, however, to those who provide the alleged infringer's connection to the Internet, and the safe harbor provision for such ISPs do not contain similar references to 512(c).  According to the Court:

We think it clear, therefore, that the cross-references to § 512(c)(3) in §§ 512(b)-(d) demonstrate that § 512(h) applies to an ISP storing infringing material on its servers in any capacity - whether as a temporary cache of a web page created by the ISP per § 512(b), as a web site stored on the ISP's server per § 512(c), or as an information locating tool hosted by the ISP per § 512(d) - and does not apply to an ISP routing infringing material to or from a personal computer owned and used by a subscriber.

Finally, the Court rejected the RIAA's appeal to public policy.  While the Court was "not unsympathetic" to the RIAA's concerns about the widespread infringement occurring over P2P networks, or the need for legal tools to protect the copyrights of its members, it was the job of Congress, and not the courts, to provide an appropriate remedy.

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