RIAA WARNS OF MORE SUBPOENAS ON MUSIC INFRINGERS, VERIZON PRESSES CHALLENGE
In the next 6 months, RIAA intends to issue a “very substantial number” of subpoenas seeking private ISP subscriber information under Sec. 512(h) of the Digital Millennium Copyright Act (DMCA), one of its attorneys said Tues. The subpoena issued to Verizon Internet Services last summer -- which the ISP refused to comply with and has challenged in U.S. Dist. Court, D.C. -- was the first step of what was to be a serious nationwide copyright enforcement effort, Donald Verrilli told U.S. Dist. Judge John Bates in oral argument Tues.
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Bates ruled against Verizon in its challenge to the first subpoena (CD Jan 22 p2) but is considering the company’s request for a stay of his order, pending appeal to the U.S. Appeals Court, D.C. In the meantime, RIAA in Feb. subpoenaed the identity of a 2nd Verizon customer, prompting the carrier to ask to have it quashed (CD March 19 p6).
Verizon attorney Andrew McBride said the ISP would commit -- for the 6-month period during which its challenge was wending its way through the legal system -- to notify subscribers of the service of DMCA subpoenas seeking their identity. But RIAA wants notice “with a club,” Bates said.
But Verrilli dismissed Verizon’s offer, calling it “cold comfort to us.” At the same time as the ISP is sending notices to its subscribers, he said, it’s encouraging the very activities that are causing such harm to RIAA by telling users that free music file sites are likely to have more and better music than subscription services.
McBride disputed RIAA’s view that in issuing a DMCA subpoena a court clerk was acting similarly to an administrative agency. RIAA intends to use the subpoenas to amass a large database of potential infringers, making clerks nothing more than a copyright police, he said. The question is how far this analogy goes, he said. Must a court take judicial notice of a clerk’s finding that there’s sufficient evidence to issue a DMCA subpoena? But Bates pressed McBride on why DMCA subpoenas should be viewed differently from those issued in lawsuits in terms of the judicial power brought to bear.
Verizon’s argument that federal courts might never enforce a subpoena outside the context of a pending case or controversy is wrong, Verrilli said. Bates asked the “critical question,” Verrilli said: What practical consequences does Sec. 512(h) have for concerns underlying Article III? One such consequence might be that giving that authority to the judicial branch could compromise its impartiality and independence, he said. However, he said, that’s the only Article III argument Verizon has -- and isn’t anywhere near a substantial one.
RIAA’s admission that it intends to solve its piracy problems by issuing millions of subpoenas to Internet users crosses the line, McBride said. Clerks now will be “fulltime copyright investigators for RIAA,” he said. Bates said he would take the case under advisement.