The U.S. Court of Appeals for the District of Columbia Circuit has held that the Digital Millennium Copyright Act ("DMCA") did not authorize the Recording Industry Association of America ("RIAA") to obtain subpoenas compelling Verizon and other Internet service providers ("ISPs") to disclose the names and other information about subscribers alleged to have violated copyright laws by illegally downloading over 600 songs in a single day from the internet using a peer-to-peer file sharing network. Recording Industry Association Of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003).
The District Court Ordered Compliance With The Subpoena.
Under subsection (a) of Section 512 of the DMCA, a service provider is not liable for "infringement of copyright by reason of the provider's transmitting, routing, or providing [Internet] 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," 17 U.S.C. § 512(a). In addition, subsection (c) provides that: "A service provider shall not be liable for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider. Id. § 512(c)(1). Only subsection (c) spells out certain requirements to be met by copyright owners for effective notification of copyright infringement under this subsection – there is no equivalent provision in subsection (a).
The DMCA contains a broad subpoena power, 17 U.S.C. § 512(h). A copyright owner may obtain and serve a subpoena on a service provider seeking the identity of a customer alleged to be infringing the owner's copyright. The subpoena must contain "a copy of a notification described in subsection (c)(3)(A)," and a sworn declaration ensuring that the subpoena is solely to obtain the identity of the alleged infringer, which information will be used only to protect rights to the copyright." Id. §512(h)(2).
The RIAA served subpoenas on Verizon seeking the identity of alleged infringers using a peer-to-peer file-sharing network. Verizon refused on the principle that the DMCA subpoena power applies only if the infringed material is stored or controlled on the service provider's system or network pursuant to subsection (c) of the DMCA, and presented several constitutional challenges to the DMCA. The RIAA contended that the DMCA subpoena power under section 512(h) applies to all service providers falling within the provisions of subsections (a) through (d), including Verizon. The district court rejected Verizon’s statutory and constitutional challenges to § 512(h) and ordered the disclosure of the names of the alleged infringers.
The Court of Appeals Reversed And Ordered That The Subpoenas Be Quashed.
On appeal, Verizon renewed its alternative arguments for reversing the orders of the district court. First, it argued that §512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others. Verizon argued that the subpoenas obtained by the RIAA fail to meet the requirements of the DMCA in that they did not – and cannot (because Verizon is not storing the infringing material on its server) – identify material "to be removed or access to which is to be disabled" by Verizon, and § 512(h)(4) makes satisfaction of the notification requirement in subsection (c) a condition precedent to issuance of a subpoena. According to the RIAA, the purpose of § 512(h) being to identify infringers, a notice should be deemed sufficient so long as the ISP can identify the infringer from the IP address in the subpoena. If the statute does authorize such a subpoena, Verizon argued, then the statute is unconstitutional. The Court of Appeals found the statutory issue dispositive and failed to reach the constitutional issues.
Writing for the Court of Appeals, Chief Judge Ginsburg concluded that, "We conclude from both the terms of § 512(h) and the overall structure of § 512 that, as Verizon contends, 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." The Court of Appeals found it significant that the so-called "notice and take down" provision noticeably is present in sections 512(b)-(d), and noticeably absent in section512(a). The Court concluded that the defect in the RIAA’s notification was not a mere technical error nor "insubstantial" notification: "The RIAA’s notification identifies absolutely no material Verizon could remove or access to which it could disable, which indicates to us that § 512(c)(3)(A) concerns means of infringement other than [peer to peer] file sharing." 351 F.3d at 1236. The Court flatly rejected the RIAA’s argument that the definition of "[internet] service provider" in section 512(k)(1)(B) makes section 512(h) applicable to an ISP regardless what function it performs with respect to infringing material as borderline "silly". The Court wrote: "Define all the world as an ISP if you like, the validity of a § 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective under § 512(c)(3)(A)." Id.
The Court of Appeals next agreed with Verizon’s argument that the presence in section512(h) of three separate references to section512(c), and that the absence of any reference to section512(a) suggests the subpoena power of section512(h) applies only to ISPs engaged in storing copyrighted material and not to those engaged solely in transmitting it on behalf of others. The Court held that, although the subpoena power applies to an ISP storing infringing material on its servers in any capacity, it "does not apply to an ISP routing infringing material to or from a personal computer owned and used by a subscriber." Id. at 1237.
Finally, the Court of Appeals rejected the RIAA’s contention that the legislative history of the DCMA indicates that the subpoena power should be interpreted to reach peer-to-peer file sharing networks. The Court held that it is "clear (albeit complex), [that] the legislative history of the DMCA betrays no awareness whatsoever that internet users might be able directly to exchange files containing copyrighted works." Id. at 1238. The Court refused to re-write the DMCA to address a problem that Congress left unsolved.
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