COURT FINDS LITTLE MERIT IN VERIZON FREE SPEECH ARGUMENTS
A federal court Thurs. handed the recording industry a major victory in a closely watched case challenging the constitutionality of the Digital Millennium Copyright Act’s (DMCA) subpoena provisions. In a lengthy opinion, U.S. Dist. Judge John Bates, D.C., denied requests by Verizon Internet Services for a stay, pending appeal, of an order forcing the ISP to divulge the identity of an alleged massive online infringer, and to quash a 2nd subpoena seeking information on additional claimed cyperpirates. Bates stayed his order for 14 days to give Verizon time to seek relief from the U.S. Appeals Court, D.C.
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Bates said Verizon had failed to meet the “heavy burden” to justify a stay of the Jan. 21 order directing it to comply with the first DMCA subpoena issued for the RIAA (CD Jan 22 p2). Contrary to Verizon’s claim, the court said, the Sec. 512(h) subpoena authorization “does not represent an innovation that is inconsistent with the limited role of the judiciary as it has traditionally been understood in our constitutional regime.” The fact that Congress permitted a court employee to carry out the “specific nondiscretionary function” of issuing a DMCA subpoena neither implicated Article III judicial power nor involved judges in investigations that would be properly relegated to one of the other branches of government, Bates wrote,
Bates found some merit, “albeit quite limited,” in Verizon’s argument that allowing tens of thousands of copyright holders to seek DMCA subpoenas from federal court clerks would strain judicial resources. However, he said, “to date, that concern is entirely speculative, as no such barrage of requests has occurred.”
The court also found Verizon’s First Amendment argument unpersuasive. While some level of First Amendment protection should be given anonymous online expression, Bates said, that degree of protection is “minimal where alleged copyright infringement is the expression at issue.” The DMCA doesn’t regulated protected speech, the court said -- it only requires production of the identity of someone who has engaged in the unprotected conduct of sharing copyrighted material on the Internet. But even if some safeguards were necessary, the court said, the procedures for obtaining a Sec. 512(h) subpoena are sufficient to prevent any substantial encroachment on free speech.
“There is little chance that Verizon will succeed on the merits of its statutory and constitutional claims on appeal,” Bates wrote. He said that since Verizon already had said it would reveal the identity of the user the RIAA was seeking if the association obtained a subpoena in a “John Doe” lawsuit, “it is difficult to appreciate Verizon’s claims of harms to its interests.”
On the other hand, the court said, the harm to RIAA from a stay would be “comparatively more substantial” because it was likely other ISPs presented with DMCA subpoenas would follow Verizon’s lead, leaving copyrighted material open to infringement. Nor would the public interest be served by granting a stay, the court said: “It would not be in the public interest to alter the trade-offs Congress carefully crafted in the DMCA.”
The decision affirms once again that “the law which provides copyright holders with a process to identify infringers is both constitutional and appropriate,” RIAA Pres. Cary Sherman said. If peer-to-peer site users don’t want to be identified, Sherman said, they shouldn’t break the law by illegally distributing music. “Today’s decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability.”