Verizon Internet Services used the occasion of a 2nd RIAA subpoen...

Feb. 4, seeks the identity of another Verizon customer alleged to have committed massive copyright infringement. The matter, which has been combined with the current battle over an earlier RIAA subpoena upheld by the U.S. Dist. Court, D.C. (CD Jan 22 p2), is set for argument April 1. In a Feb. 13 argument seeking a stay of U.S. Dist. Judge John Bates’s order directing Verizon to comply with RIAA’s first DMCA subpoena, the court expressed reluctance to deal with the ISP’s constitutional claims, saying it hadn’t devoted much time to them in its briefs. In a March 17 brief in support of its motion to quash RIAA’s 2nd subpoena, Verizon said that while the court acknowledged that the ISP had raised First Amendment and Article III issues in the earlier proceeding, it “declined to resolve those issues ‘[a]bsent a clear challenge by Verizon, and full briefing and development by the parties.'” That clear challenge now is before the court, Verizon said. Article III requires that there be a “case or controversy” before federal courts are authorized to issue judicial process, the ISP said. Moreover, it said, Sec. 512(h) violates the First Amendment by failing to “provide adequate procedures for the protection of the expressive and associational interest of Internet users” and it’s overly broad. If Sec. 512(h) isn’t struck down entirely, the ISP said, it should be read to apply only to cases where a subscriber stored allegedly infringing material on a service provider’s system or network. If the court disagrees, Verizon said, it should stay any order pending appeal of the case to the U.S. Appeals Court, D.C. (Bates currently is considering whether to stay his order on the first subpoena). A broad array of ISPs and industry trade associations sought permission to submit an amicus brief, a request to which RIAA hasn’t agreed. In addition to endorsing Verizon’s constitutional arguments, industry groups said they would urge the court to consider how RIAA’s reading of Sec. 512(h) would affect customers’ rights. The recording industry’s opposition brief is due March 27. Verizon then has until March 31 to reply.