War on P2P Piracy: Federal Court Authorizes Issuance of DMCA Subpoenas to Conduit ISPs
March 4, 2003
In a test case addressing the scope of a copyright owner’s
subpoena power under the Digital Millennium Copyright Act (the DMCA), the
Recording Industry Association of America (the RIAA) recently convinced a
federal judge to order Verizon Internet Services (Verizon) to turn over the name
of a subscriber who allegedly had infringed the copyrights in a large number of
musical recordings by sharing copies of them via peer-to-peer (P2P) file sharing
(from personal computer to personal computer) using Verizon’s site as a conduit.1
The case arose from a new tactic that the RIAA has pursued
in its war on P2P piracy: bringing claims for copyright infringement against
individuals who are engaged in wide-scale sharing of copyrighted recordings.
Before it can file suit, though, the RIAA needs to determine the identity of the
alleged pirate. In this case, the RIAA served a subpoena on Verizon, the
individual’s Internet Service Provider (ISP), requesting that Verizon turn over
information about the identity of its subscriber. The RIAA obtained the subpoena
under 17 U.S.C. § 512(h)(1), part of the DMCA, which authorizes the clerk of a
federal court “to issue a subpoena to a service provider for identification of
an alleged infringer . . . .”
Verizon resisted the subpoena. It supported the RIAA’s and
other copyright owners’ rights to take an individual to court and have the court
order the ISP to reveal the identity of a particular subscriber (known as a
“John Doe” case). It argued, however, that Section 512(h)(1) authorizes the
issuance of subpoenas only to hosting ISPs – which actually store copyrighted
materials on their systems or networks – and not to ISPs that, like Verizon,
serve only as a conduit for the transmission of copyrighted materials.
Verizon’s argument was based on the language and structure
of the statute, which draws distinctions between conduit ISPs and hosting ISPs
and which creates certain safe harbors for ISPs. In particular, subsection
512(a) creates a safe harbor for an ISP that serves as a mere conduit for
transmission of copyrighted material stored on a user’s computer and made
available by the user, and which otherwise meets certain conditions. In
addition, subsection 512(k) of the DMCA sets forth two separate definitions of
“service provider”: the first definition defines subsection 512(a) ISPs that
merely serve as a conduit; the second definition defines all other ISPs.
Relying on these distinctions, and on the fact that
subsection 512(h) – the subsection authorizing the issuance of subpoenas –
refers to subsection 512(a), Verizon argued that different sets of rules applied
to conduit ISPs than applied to hosting ISPs. In particular, according to
Verizon, the statute authorizes the issuance of subpoenas (outside of a pending
lawsuit) only to hosting ISPs.
The federal court in Washington, D.C., rejected Verizon’s
distinction and ordered it to divulge the identity of the allegedly infringing
subscriber. The court focused primarily on the legislative intent underlying the
DMCA, concluding that “[i]t is unlikely . . . that Congress would seek to
protect copyright owners in only some of the settings addressed in the DMCA, but
not in others.”2
The implications of the court’s decision could be
far-reaching. For copyright owners, the decision creates a relatively efficient
and inexpensive investigative tool to determine the identity of infringers, who
are otherwise difficult to identify. ISPs, on the other hand, are concerned that
the decision makes it too easy for copyright owners to serve subpoenas, will
impose significant costs and burdens on them, and could threaten individual
privacy rights, because the subpoenas can be obtained and served without any
real court oversight. Verizon has appealed the decision. The appeal will be
closely watched, and could ultimately end up at the Supreme Court.
For more information, contact Sheila Heidmiller, toll free,
at 1-888-688-8500.
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[1] Recording Industry Association of America v. Verizon
Internet Services, 2003 U.S. Dist. LEXIS 681 (D.D.C. 2003).
[2] Id. at *30.