In re Verizon Internet Services, Inc., CIV.A.02-MS-0323(JDB).

• Citation: 240 F.Supp.2d 24
• Decision Date: 21 January 2003
• Docket Number: No. CIV.A.02-MS-0323(JDB).,CIV.A.02-MS-0323(JDB).
• Parties: In re: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter, Recording Industry Association of America, Plaintiff, v. Verizon Internet Services, Defendant.
• Court: U.S. District Court — District of Columbia

240 F.Supp.2d 24

In re: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter,

Recording Industry Association of America, Plaintiff, v. Verizon Internet Services, Defendant.

No. CIV.A.02-MS-0323(JDB).

United States District Court, District of Columbia.

January 21, 2003.

Joe Robert Caldwell, Jr., Baker Botts, LLP, Washington, DC, for Alliance for Public Technolgy, Computer Professionals for Social Responsibility, Consumer Alert, Electronic Frontier Foundation (Eff), Media Access Project, National Grange, National Consumers League, Privacy Rights Clearinghouse, Privacyactivism, Public Knowledge, Utility Consumers' Action NetWork, Amici.

Donald B. Verrilli, Jr., Thomas J. Perrelli, Jenner & Block, Washington, DC, Jonathan Whitehead, Recording Industry Association of America, Washington, DC, for Recording Industry Association of America, Inc. (Riaa), Movant.

Timothy C. Hester, Covington & Burling, Washington, DC, for Verizon Internet Services, Inc., Movant.

Joe Robert Caldwell, Jr., Baker Botts, LLP, Washington, DC, for Electronic Privacy Information Center, Movant.

Megan E. Gray, Gray Matters, Washington, DC, for EFF & Samuelson Law, Technology & Public Policy Clinic at Boalt Hall, School of law, Amicus.

Paul B. Gaffney, Williams & Connolly, LLP, Washington, DC, for Motion Picture Association of America (MPAA), Movant.

Kathryn Schaefer Zecca, Robbins, Russell, Englert, Orseck & Untereiner, Washington, DC, for United States Internet Industry Association, The Computer & Communications Industry Association, Internet Service Providers' Association (South Africa), Yahoo!, Incorporated, Southern Star, Mercury Network, LLC, Netlink 2000 Inc., Zzapp! Internet Services, Smcnet LLC, Ice Communications Inc., Frontier and Citizens Communications, DM Solutions, Movants.

MEMORANDUM OPINION

BATES, District Judge.

The Recording Industry Association of America ("RIAA")¹ has moved to enforce a subpoena served on Verizon Internet Services ("Verizon") under the Digital Millennium Copyright Act of 1998 ("DMCA" or "Act"), 17 U.S.C. § 512. On behalf of copyright owners, RIAA seeks the identity of an anonymous user of Verizon's service who is alleged to have infringed copyrights with respect to more than 600 songs offered for downloading over the Internet in a single day. The copyright owners (and thus RIAA) can discern the Internet Protocol address, but not the identity, of the alleged infringer—only the service provider can identify the user. Verizon argues that the subpoena relates to material transmitted over Verizon's network, not stored on it, and thus falls outside the scope of the subpoena power authorized in the DMCA. RIAA counters that the subpoena power under section 512(h) of the DMCA applies to all Internet service providers, including Verizon, whether the infringing material is stored on or simply transmitted over the service provider's network.

The case thus presents a core issue of statutory interpretation relating to the scope of the subpoena authority under the DMCA. The parties, and several amici curiae, agree that this is an issue of first impression of great importance to the application of copyright law to the Internet. Indeed, they concede that this case is presented as a test case on the DMCA subpoena power. Based on the language and structure of the statute, as confirmed by the purpose and history of the legislation, the Court concludes that the subpoena power in 17 U.S.C. § 512(h) applies to all Internet service providers within the scope of the DMCA, not just to those service providers storing information on a system or network at the direction of a user. Therefore, the Court grants RIAA's motion to enforce, and orders Verizon to comply with the properly issued and supported subpoena from RIAA seeking the identity of the alleged infringer.

BACKGROUND

An assessment of this issue requires some understanding of both the DMCA and the subpoena served by RIAA on Verizon. Although the subpoena power is specifically delineated in section 512(h), that language cannot be isolated from the structure and purpose of the DMCA, and RIAA's subpoena to Verizon must be assessed in that context.

1. The Digital Millennium Copyright Act

The DMCA amended chapter 5 of the Copyright Act, 17 U.S.C. § 501 et seq., and created a new section 512 entitled "Limitations on liability relating to material online." As the title indicates, the DMCA is designed primarily to limit the liability of Internet service providers for acts of copyright infringement by customers who are using the providers' systems or networks. Section 512 contains limitations on the liability of service providers for four general categories of activity set forth in subsections (a) through (d). The statute thereby creates a series of "safe harbors" that allow service providers to limit their liability for copyright infringement by users if certain conditions under the Act are satisfied. "The limitations in subsections (a) through (d) protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory [copyright] infringement." S.Rep. No. 105-190, at 20 (1998).

Under the DMCA, an Internet service provider falls within one of these four subsections based on how the allegedly infringing material has interacted with the service provider's system or network. To qualify for a "safe harbor," the service provider must fulfill the conditions under the applicable subsection and the conditions of subsection (i), which includes the requirement that a service provider implement and inform its users of its policy to terminate a subscriber's account in cases of repeat copyright infringement. See 17 U.S.C. § 512(i)(1)(A). Under subsection (a), which Verizon contends is applicable here, if the service provider meets certain conditions it will not be liable for the user's copyright infringement when the service provider transmits the copyrighted material over its system or network:

(a) Transitory digital network communications.—A service provider shall not be 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 ....

Id. § 512(a). On the other hand, subsection (c), the other subsection most relevant here, pertains to copyrighted material that is stored on the service provider's network or system: (c) Information residing on systems or networks at direction of users.—... 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).² Under subsection (c), a service provider must also designate an agent to receive notifications of claimed infringement from copyright owners. Id. § 512(c)(2).

Of particular importance here, subsection (c)(3)(A) spells out requirements to be met by copyright owners for effective notification of copyright infringement under subsection (c). The notification of claimed infringement must be in a writing provided to the designated agent, and must include the following—a "signature of a person authorized to act on behalf of the [copyright] owner"; identification of the copyrighted work allegedly infringed (or a list of multiple copyrighted works covered by a single notification); identification of the allegedly infringing material "that is to be removed or access to which is to be disabled," and information to enable the provider to locate the material; information to permit the provider to contact the complaining party; a statement of good faith belief that the use complained of is not authorized; and a "statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner." Id. § 512(c)(3)(A)(i)(vi). This notification requirement is located within subsection (c), and there is no similar notification requirement within subsection (a) or elsewhere in section 512. The subsection (c)(3) notification requirement is referenced, however, in the conditions under both subsection (b) and subsection (d). See id. §§ 512(b)(2)(E) & (d)(3).

The DMCA also contains a novel provision in subsection (h)—which lies at the heart of the dispute before the Court— permitting a copyright owner to 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 is issued by the clerk of any United States District Court upon a request by the copyright owner (or one authorized to act on the owner's behalf) containing the proposed subpoena, "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 subpoena, in turn, authorizes and orders the recipient service provider "to expeditiously disclose" information sufficient to identify the alleged infringer. Id. § 512(h)(3). The clerk "shall expeditiously issue" the subpoena if it is in proper form, the declaration is properly executed, and "the notification filed satisfies the provisions of subsection (c)(3)(A)." Id. § 512(h)(4). The service provider, upon receipt of the subpoena, "shall expeditiously disclose" the information required by the subpoena to the copyright owner (or authorized person). Id. § 512(h)(5). The issuance, delivery and enforcement of subpoenas is to be governed (to the extent practicable) by the provisions of the Federal Rules of Civil Procedure dealing with subpoenas duces tecum. Id....