In re Verizon Internet Services, Inc., No. CIV.A. 03-MS-0040 JDB.

CourtUnited States District Courts. United States District Court (Columbia)
Citation257 F.Supp.2d 244
Docket NumberNo. CIV.A. 03-MS-0040 JDB.
PartiesIn re: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter, Recording Industry Association of America, Plaintiff, v. Verizon Internet Services, Defendant.
Decision Date24 April 2003
257 F.Supp.2d 244
In re: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter,
Recording Industry Association of America, Plaintiff,
Verizon Internet Services, Defendant.
No. CIV.A. 03-MS-0040 JDB.
United States District Court, District of Columbia.
April 24, 2003.

Page 245


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Donald B. Verrilli, Jr., Thomas Perrelli, Jenner & Block, Recording Industry Association of America, Jonathan Whitehead, Recording Industry, Association of America, Washington, for Plaintiff.

Andrew McBride, Bruce Joseph, Dineen Wasylik, Wiley Rein & Fielding, Washington, for Defendant.

Kathryn Schaefer Zecca, Robbins, Russell, Englert, Orseck & Untereiner, U.S. Internet Industry Association, Megan Gray, Gray Matters, Paul Benedict Gaffney, Edward Bennett Williams Building, Williams & Connolly, Joe Caldwell, Jr., Baker Botts, LLP, The Warner Building, Electronic Privacy Information Center, Washington, for Amici.

John Zacharia, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Intervenor.


BATES, District Judge.

Before the Court is the motion of Verizon Internet Services ("Verizon") to quash the February 4, 2003 subpoena served on it by the Recording Industry Association of America ("RIAA") pursuant to the Digital Millennium Copyright Act of 1998 ("DMCA"), 17 U.S.C. § 512. On behalf of copyright owners, RIAA seeks the identity of an anonymous user of the conduit functions of Verizon's Internet service who is alleged to have infringed copyrights by offering hundreds of songs for downloading over the Internet.1 In an earlier action, this Court rejected Verizon's statutory challenges to a similar subpoena, holding that Verizon's conduit functions were within the scope of the subpoena authority of § 512(h) of the DMCA. See In re: Verizon Internet Services, Inc., Subpeona Enforcement Matter, 240 F.Supp.2d 24 (D.D.C.2003). Verizon now claims that § 512(h) violates

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Article III of the Constitution because it authorizes federal courts to issue binding process in the absence of a pending case or controversy, and that § 512(h) violates the First Amendment rights of Internet users. If the merits of Verizon's constitutional challenges are rejected by this Court, Verizon seeks a stay pending appeal of that ruling, and of the earlier statutory ruling by this Court.

Having considered the parties' several memoranda, three hearings, the brief of the United States as intervenor defending the constitutionality of § 512(h), a number of amicus briefs, and the entire record herein, the Court denies Verizon's motion to quash RIAA's February 4, 2003 subpoena. The subpoena power authorized under § 512(h) of the DMCA does not violate the case or controversy requirement of Article III and does not abridge the First Amendment rights of Internet users. Moreover, because Verizon is unable to show irreparable harm or that it is likely to succeed on an appeal of its constitutional or statutory challenges, the Court also denies Verizon's request for a stay pending appeal.2


This case has followed a somewhat circuitous procedural path. To begin with, this is the second subpoena RIAA has served on Verizon pursuant to the DMCA seeking the identity of an anonymous Internet user alleged to have infringed protected copyrights. On July 24, 2002, RIAA served its first subpoena to obtain the identity of a Verizon subscriber alleged to have made more than 600 copyrighted songs available for downloading over the Internet through peer-to-peer file transfer software provided by KaZaA. Verizon claimed that because RIAA's subpoena related to material transmitted over Verizon's network—rather than stored on it—it fell outside the scope of the subpoena power authorized by § 512(h). Verizon read § 512(h) as applying only in those situations where the infringing material is physically stored on the service provider's network. RIAA contended that the subpoena authority under § 512(h) applied to all service providers under the DMCA, including Verizon. The parties framed the issue as one of statutory construction, although Verizon noted that if § 512(h)'s subpoena authority were construed as applying to all service providers, the statute "raises substantial questions" under Article III and the First Amendment.

The Court construed the subpoena power in § 512(h) as applying to all service providers under the DMCA, and granted RIAA's motion to enforce the subpoena. See In re: Verizon Internet Services, Inc., 240 F.Supp.2d 24 (hereinafter "First Subpoena Decision"). The Court did not reach the constitutional arguments, instead deciding the question strictly on statutory grounds by construing the DMCA's language, structure, purpose, and legislative history. As a result, the Court found the subpoena valid and ordered Verizon expeditiously to provide RIAA with the identity of the subscriber alleged to be infringing copyrighted songs.

Verizon appealed that decision, and moved to stay the Court's order pending resolution of its appeal.3 In its motion for a stay, Verizon asserted constitutional challenges as the primary basis for a stay, claiming that the Court's construction of § 512(h) raised serious questions regarding the First Amendment rights of Internet

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users and presented a critical issue whether a subpoena could issue under Article III without an actual "case or controversy" pending in federal court. RIAA contended that because Verizon had not raised these issues earlier, it had waived them on appeal.

The Court held a hearing on Verizon's stay motion. Meanwhile, however, RIAA served a second subpoena on Verizon on February 4, 2003. Shortly after the hearing on its motion to stay the first subpoena, Verizon moved to quash RIAA's second subpoena, directly presenting the constitutional challenges.4 In an effort to resolve both the motion to stay on the first subpoena and the constitutional challenges to the second subpoena, the Court ordered another round of expedited briefing. Verizon proposed notifying the two subscribers whose conduct is at issue of the commencement and status of these actions, and the nature of RIAA's allegations of copyright infringement, which was then done at the Court's urging. A third hearing to address Verizon's constitutional challenges to § 512(h) was held on April 1, 2003. Subsequently, the United States has moved, and been permitted, to intervene and has submitted a brief defending the constitutionality of the DMCA.

The gravamen of Verizon's statutory challenge to the first subpoena was that the subpoena power under § 512(h) should be construed as limited to situations within § 512(c) where allegedly infringing material is stored on the Internet service provider's network. This Court firmly rejected that view in First Subpoena Decision, 240 F.Supp.2d 24. The constitutional challenges now asserted by Verizon in response to the second RIAA subpoena are, although substantive and in apparent good faith, somewhat in tension with the earlier statutory challenge. If Verizon were correct that § 512(h) should be construed to permit subpoenas only for subsection (c) service providers—which it is not—Verizon's Article III challenge would nonetheless retain its full force because such subpoenas would still, under Verizon's view, be unconnected to a pending case or controversy, and the asserted First Amendment concerns would also remain, albeit focused on the more limited subset of subscribers of subsection (c) service providers. Given this tension, one might ask why the constitutional challenges were not more fully pressed by Verizon in the first subpoena litigation. Be that as it may, those issues are now squarely before the Court in this case.5


Verizon contends that § 512(h) violates Article III of the Constitution because it authorizes federal courts to issue subpoenas in the absence of a pending case or controversy. Citing cases from the eighteenth and nineteenth centuries, Verizon argues that federal judges can neither exercise authority outside the context of an actual case or controversy nor undertake non-judicial functions. See Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792); United States v. Ferreira, 54 U.S. 40, 13 How. 40, 14 L.Ed. 40 (1851). Relying on United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69

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(1988), and Houston Business Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208 (D.C.Cir.1996), Verizon also argues more specifically that "the power to issue subpoenas exists only in the context of a case that is properly pending before a federal court." Verizon's Br. Supp. Mot. Quash Feb. 4, 2003 Subpoena at 12.6

Verizon's arguments, although intriguing, are ultimately not persuasive. No doubt the justices of the Supreme Court have indicated that the federal courts are properly confined to the exercise of "judicial power." See Hayburn's Case, 2 U.S. at 410 n. *, 2 Dall. 409; Ferreira, 54 U.S. at 48, 13 How. 40.7 And, more recently, the Supreme Court has noted that "[f]ederal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends." United States v. Morton Salt Co., 338 U.S. 632, 641-642, 70 S.Ct. 357, 94 L.Ed. 401 (1950). But upon examination, it is clear that the § 512(h) subpoena authorization does not represent an innovation that is inconsistent with the limited role of the judiciary as it has traditionally been understood in our constitutional regime.

As an initial matter, the clerk's issuance of a § 512(h) subpoena does not involve either the exercise of judicial power or the exercise by federal judges of Article I or Article II-type investigatory power. Indeed, the issuance of a § 512(h) subpoena cannot properly be...

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