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STAY RULING EXPECTED SOON IN RIAA-VERIZON DMCA SUBPOENA FIGHT

In 2-hour session punctuated by frequent questions from bench, lawyers for Verizon and RIAA clashed Thurs. over whether ISP should have to divulge identity of subscriber claimed to be engaged in massive copyright infringement. Verizon is seeking stay -- pending appeal to U.S. Appeals Court, D.C. -- of Jan. 21 decision by Judge John Bates of U.S. Dist. Court, D.C., directing it to comply with RIAA subpoena issued under Digital Millennium Copyright Act (DMCA) (CD Jan 22 p2). Bates said he would rule “fairly expeditiously” in what both sides agreed was case of first impression.

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Bates pressed Verizon attorney Andrew McBride about effect of his order requiring Verizon to reveal its user’s personal information. “The way this has been pitched,” he told McBride, is that it’s of global significance. But how, Bates asked, does ruling of single district judge bind any other court or any ISP other than Verizon that receives DMCA Sec. 512(h) subpoena from RIAA? Verizon is claiming harm to “world of millions of Internet users,” but it’s all speculative, Bates said. “I'm just hardpressed to understand” how he could take into account all those possible effects when this is just sole decision by “lowly district court judge,” he told McBride. Verizon’s broad claims were sparked by RIAA’s assertion that staying enforcement of its subpoena would harm its ability to counter global piracy, McBride said.

Key question is whether, if RIAA is allowed to enforce its subpoena, that will render Verizon’s appeal moot. There’s no question that it would, McBride said -- information, once disclosed, is gone. But Bates said he was “troubled by” that position that, taken to its logical conclusion, would mean that without stays there never could be any appellate review in subpoena enforcement actions involving information that, once disclosed, then always was in recipient’s possession. Not every case is test case, McBride said. It still will be case of first impression after Appeals Court rules, Bates said, except in that jurisdiction.

Asked to address overall significance of case, RIAA attorney Donald Verrilli urged court to view any harm Verizon might suffer from enforcement of subpoena narrowly but to take broader view where RIAA was concerned. Requiring Verizon to comply with subpoena means only that ISP must release identity of alleged infringer, he said. However, Verrilli said, Verizon’s view appeared to be that if enforcement weren’t stayed, it would “freeze” other RIAA DMCA subpoenas as well. There are many infringements going on, he said, and that’s exactly what the DMCA was intended to prevent. It’s “unusual circumstance” to take narrow view in assessing harm to one side and wide view in doing so on other side, Bates said.

Verrilli stipulated RIAA wouldn’t argue in appeals court that case was moot if stay weren’t granted. As long as there’s some possibility of fashioning effective relief after reversal, he said, case isn’t moot. However, he said, even mootness issue doesn’t get Verizon stay because it has suffered no irreparable harm from subpoena. ISP has said all along it will give up its customer’s identity in John Doe lawsuit, he said. This is about “how you let the cat out of the bag,” not whether or not to let it out, Verrilli said.

Citing “a lot of clamor out there” in press about First Amendment implications of DMCA subpoena on Internet users, Bates asked why courts shouldn’t take those constitutional arguments into account in dealing with subpoena requests. Verizon has “vastly overblown” context of free speech protections, Verrilli said. There’s no First Amendment protection against having one’s identity disclosed, he said. Moreover, he said, court noted in its decision that there was no evidence in record to suggest there were any protected First Amendment activities going on with Verizon’s subscriber. And, Verrilli said, Verizon took all privacy and First Amendment interests off table when it agreed to disclose its user’s identity in lawsuit. Earlier, Bates questioned how serious Verizon was about its First Amendment claim, saying it had devoted only 2 or 3 sentences to it in its brief.

Granting stay won’t irreparably harm RIAA because it can sue for damages in John Doe case, McBride said on rebuttal. Possibility of monetary relief exists, court said, “but I'd have to do some real stretching” to conclude that Verizon’s subscriber could pay RIAA for alleged one-day download of 600 songs. It’s “real speculation” to believe money damages could address that infringement, he said.

On other hand, McBride said, denying stay would wreak havoc with Verizon’s goodwill with its customers. Asked whether its subscribers were likely to “bolt” when they read that company had been ordered to reveal one person’s name, McBride pointed to much “consternation” about extending DMCA subpoena power in private hands to cover all sorts of Internet and Web activities. If stay is granted, he said, Verizon is likely to assess each Sec. 512(h) subpoena on its merits and may ask courts in other jurisdictions to take into account pendency of this case in D.C. Circuit, he said.

Court made 2 interesting observations, RIAA Senior Vp- Business & Legal Affairs Matthew Oppenheim said afterward. First, he said, Bates recognized that Verizon’s argument that Sec. 512(h) was unconstitutional was one it hadn’t raised before. Court then asked -- if you're right and I strike it down, don’t I also have to strike ISP immunity from liability under the DMCA? That could be interesting issue for the ISP community, Oppenheim said. Bates also appeared to reaffirm his skepticism about claims that alleged infringer’s conduct had anything to do with privacy, Oppenheim said.

Verizon Senior Vp-Deputy Gen. Counsel John Thorne said he was “cautiously optimistic.” Judge seemed to take seriously Verizon’s concern that Court of Appeals be able to rule on case and that it not be barred for mootness, he told us. Besides, he said, while nothing can be read into it, it’s rare that court allows more than 2 hours for argument.