The Digital Millennium Copyright Act (DMCA) does not authorize issuance of a subpoena to an internet service provider (ISP) acting merely as a conduit to allegedly infringing communications that are not stored on the ISP’s servers. Recording Industry Association of America v. Verizon Internet Services, Inc., Case Nos. 03-7015 and 03-7053, 2003 U.S. App. LEXIS 25735 (D.C. Cir. Dec. 19, 2003).

Section 512(h) of the DMCA permits a copyright owner to obtain subpoenas compelling ISPs to disclose the names of subscribers whom copyright owners allege are engaging in copyright infringement. To obtain a subpoena, the copyright owner must file a "notification of claimed infringement" that identifies the copyrighted works that were claimed to have been infringed and the infringing material or activity and providing information reasonably sufficient for the ISP to locate the material "to be removed or access to which is to be disabled" as set forth in Section 512(c)(3)(A)(iii).

The RIAA served subpoenas on Verizon pursuant to Section 512(h), seeking the identity of Verizon subscribers believed to be trading a large amount of copyrighted music via peer-to-peer (P2P) file sharing programs. Verizon refused to comply with the subpoenas, arguing, among other things, that Section 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications that do not reside on its servers. The district court disagreed and ordered Verizon to comply with the subpoenas and to disclose the identity of its subscribers.

The Court of Appeals reversed, holding that a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity. Here, the allegedly infringing content was not stored on Verizon’s servers, but rather resided solely on the subscribers’ computers. As a result, the RIAA could not satisfy the requirements of Section 512(c)(3)(A)(iii), since it was impossible for Verizon to "remove" or "disable access" to materials that did not reside on its servers. Thus, by its terms, Section 512(h) does not authorize the issuance of a subpoena to an ISP acting merely as a conduit for P2P communications not residing on the ISP’s servers.

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