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Recording Industry Ass'n of America v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.D.C. 2003) (full-text).

Factual Background[]

The dispute between Verizon and the RIAA focused on a previously obscure subsection of the Digital Millennium Copyright Act. The subsection in question — Copyright Act § 512(h) — authorizes copyright owners to ask clerks of federal District Courts to issue subpoenas to Internet service providers requiring service providers to identify suspected copyright infringers. Moreover — and most significantly — Section 512(h) empowers federal court clerks to issue these subpoenas even though no copyright infringement lawsuit has been filed against the alleged infringer.

Though Section 512(h) is simple in concept, it is complex — even convoluted — in its actual wording and structure. This was due, in part, to the fact that at the time it was enacted, Internet service providers rendered at least four, somewhat different, types of services to their subscribers. Some subscribers — perhaps most — use ISPs merely to connect to the Internet.

Other subscribers use service providers to host websites, and thus store subscribers’ materials on the ISPs’ own servers. Still other ISPs cache (or temporarily store) the content of websites, including those operated by people and companies that are not its subscribers. And some provide links to websites, without regard to who the operators of those websites may be.

As a result of an investigation the RIAA conducted into unauthorized Internet transmissions of recordings, the RIAA determined that Verizon subscribers had downloaded hundreds of recordings over peer-to-peer (“P2P”) computer networks. In order to find out who those subscribers were, the RIAA obtained and served Verizon with two Section 512(h) subpoenas.

Verizon, however, responded that it was not hosting websites, or otherwise storing files, for those subscribers; and thus it argued that it did not have to respond to the subpoenas. According to Verizon, Section 512(h) subpoenas require ISPs to provide a subscriber’s identity, only if they are storing on their own servers the subscriber’s allegedly infringing material. In this case, the RIAA acknowledged that the downloaded recordings were being stored on the subscribers’ own computers, not on Verizon’s servers. But according to the RIAA’s reading of Section 512(h), it requires ISPs to respond to subpoenas, even when ISPs merely provide connections to the Internet for suspected infringers.

Trial Court Proceedings[]

Federal District Judge John Bates agreed completely with the RIAA. Indeed, in the first of two separately issued decisions, Judge Bates concluded that the language of Section 512(h) “leaves no doubt” that it authorizes subpoenas to “all service providers,” without regard to the types of services they provide to their subscribers, including the very type of service Verizon provides to the subscribers whose identities the RIAA’s subpoenas sought.

In his second opinion, Judge Bates held that Congress had the constitutional power to enact such a subpoena provision, and that the provision does not violate subscribers’ First Amendment rights.

Appellate Court Proceedings[]

However, in an opinion by Judge Douglas Ginsburg, the Court of Appeals was equally without doubt that Section 512(h) does not authorize subpoenas to ISPs who merely provide Internet connections to suspected infringers but do not actually store allegedly infringing materials on their own servers. Judge Ginsburg reached this conclusion by threading his way through Section 512(h)’s requirements for a subpoena, and concluding that those requirements can be satisfied only when copyright owners suspect that ISPs themselves are storing allegedly infringing materials — not when such material is stored on subscribers’ own computers.

Judge Ginsburg offered an explanation for why Section 512(h) doesn’t authorize subpoenas to ISPs who merely provide Internet connections to subscribers, even when subscribers use those connections to participate in P2P networks. P2P file transmission was “not even a glimmer in anyone’s eye when the DMCA was enacted,” he observed. As a result, “Congress had no reason to foresee the application of [Section] 512(h) to P2P file sharing, nor did they draft the DMCA broadly enough to reach the new technology when it came along.”

Judge Ginsburg also acknowledged that “Had the Congress been aware of P2P technology, or anticipated its development, [Section] 512(h) might have been drafted more generally.” That, however, did not help the RIAA in this case.

Judge Ginsburg said he was “not unsympathetic either to the RIAA’s concern regarding the widespread infringement of its members’ copyrights, or the need for legal tools to protect those rights.” But, he added, “It is not the province of the courts . . . to rewrite the DMCA in order to make it fit a new and unforeseen internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries. The plight of copyright holders must be addressed in the first instance by the Congress. . . .”