COURT ORDERS VERIZON TO COMPLY WITH RIAA DMCA SUBPOENA
Calling Verizon Internet Services’s reading of law “strained,” D.C. federal court Tues. ordered company to comply with RIAA subpoena seeking information on alleged online music infringer. Case, which drew national attention and prompted amicus briefs opposing RIAA’s position from ISPs and consumer and privacy groups, arose when RIAA sought subpoena under Digital Millennium Copyright Act (DMCA) seeking identity of Verizon customer said to be pirating music via peer-to-peer file-sharing system. Verizon refused to comply, saying that because material was merely transmitted over its networks, not stored there, DMCA subpoena provisions didn’t apply.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Verizon said late Tues. it would appeal. Decision has “troubling ramifications for consumers, service providers and the growth of the Internet,” said Sarah Deutsch, vp-assoc. gen. counsel. It “opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscribed files without the due process protections afforded by the courts.” That will have chilling effect on e-mail and other private communications, she said.
RIAA v. Verizon Internet Services Inc. is “a test case on the DMCA subpoena power,” wrote U.S. Dist. Judge John Bates, D.C. Verizon’s argument to contrary, he said, court concluded that DMCA Sec. 512(h) “applied to all [ISPs] 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.”
After analyzing in detail applicable DMCA provisions, court found Verizon to be included in law’s definition of service provider. Verizon’s strained interpretation of DMCA, Bates said, “disregards entirely the clear definitional language of subsection (k) [which defines ISPs].”
Moreover, court said, Verizon’s construction didn’t square with Congress’s “express and repeated direction to make the subpoena process ‘expeditious.'” DMCA contemplates speedy subpoena process aimed at quickly identifying and stopping infringers, court said. Buying into Verizon’s argument, court said, would mean copyright holders would have to determine first whether infringed material was being stored on or only transmitted over ISP’s system -- something that’s guaranteed to cause delays and complications. Nor does Verizon’s argument make sense from policy perspective, court said, because there’s no “sound reason” why Congress would “enable a copyright owner to obtain identifying information from a service provider storing the infringing materials on its system, but wouldn’t enable a copyright owner to obtain identifying information from a service provider transmitting the material over its system.” In short, court said, Verizon’s reading would create “huge loophole” in Congress’s effort to stop Internet copyright violations.
DMCA was Congress’s way of balancing liability protection for ISPs against need for broad protection for copyrights on Internet, court said. Act involved tradeoffs on both sides, it said. If ISPs needed only to turn over identifying information when infringing material was stored on their systems, court said, then those ISPs would be protected under act but would have no corresponding obligation to help copyright owners find infringers: “There is no logical connection between the line Verizon seeks to draw and the objective Congress sought to achieve through the DMCA.”
Nor did court buy Verizon’s argument that RIAA could seek subpoenas by filing “John Doe” cases in federal court. “Not only are John Doe actions more burdensome and less timely, but in several important ways they are less protective of the rights of service providers and Internet users that is the Section 512(h) process,” court said.
District court relied in part on the recent U.S. Supreme Court decision in Eldred v. Ashcroft. “With copyright legislation such as the DMCA,” Bates wrote, “[t]he wisdom of Congress’ action… is not within [the Court’s] province to second guess.”
Decision validates RIAA’s interpretation of law, Pres. Cary Sherman said. “Now that the court has ordered Verizon to live up to its obligation under the law,” he said, “we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal.”
Both ISPs and privacy advocates voiced disappointment over decision and said it could prompt Congress to revisit DMCA. Not only did ruling demonstrate some of “additional difficulties” decision in Eldred would put in path of those trying to find balance in copyright law, but it also “speaks strongly” to fact that DMCA might need reconsideration, said American U. law prof. Peter Jaszi.
Decision comes down to very narrow point of law, said David McClure, pres. of U.S. Internet Industry Assn, which filed amicus brief supporting Verizon. Court has allowed RIAA to use faster, less expensive method for identifying infringers, he said. ISPs believe method creates due process and privacy problems, he said, but now that court has ruled, they will adjust. Decision is small step toward trying to sort out how DMCA should be implemented, McClure said. Either courts will work that out, he said, or Congress will have to take another look. “It’s certainly not the end of the world,” he said.