VERIZON STRESSES CONSTITUTIONAL VIOLATIONS IN 2ND RIAA SUBPOENA CASE

Subpoena, issued Feb. 4, seeks identity of another Verizon customer alleged to have committed massive copyright infringement. Case, which has been combined with current battle over earlier RIAA subpoena upheld by U.S. Dist. Court, D.C., is set for argument April 1.

In Feb. 13 argument seeking stay of U.S. Dist. Judge John Bates’s order directing Verizon to comply with RIAA’s first DMCA subpoena, court expressed reluctance to deal with ISP’s constitutional claims, saying Assn. hadn’t devoted much time to them in its briefs. In March 17 brief in support of its motion to quash RIAA’s 2nd subpoena, Verizon said that while court acknowledged that ISP had raised First Amendment and Article III issues in 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 court, Verizon said.

“Verizon’s position in this second subpoena action is clear and unequivocal,” it said. Article III requires that there be “case or controversy” before federal courts are authorized to issue judicial process, ISP said. Moreover, it said, Sec. 512(h) violates First Amendment by failing to “provide adequate procedures for the protection of the expressive and associational interest of Internet users” and is overly broad. If Sec. 512(h) isn’t struck down entirely, ISP said, it should be read to apply only to cases where subscriber stored allegedly infringing material on service provider’s system or network. If court disagrees, Verizon said, it should stay any order pending appeal of case to U.S. Appeals Court, D.C. (Bates currently is considering whether to stay his order on first subpoena).

One reason justifying stay, Verizon said, is that it already has notified subscribers whose identity RIAA is seeking of status of pending cases and has reminded them of their obligations under their service agreements. Notifying alleged infringers of their illegal activities was all RIAA originally said it wanted, Verizon said.

In declaration filed with Verizon’s brief, Keith Kidd, company’s dir.-architecture, testing & integration, said his examination of Kazaa’s file-sharing system showed that, “to the extent RIAA used the Kazaa application for purposes of identifying and downloading the files alleged to be infringing material” in both subpoena cases, “RIAA also had the ability to directly electronically contact the Kazaa user and would have been notified if such direct contact were not possible.”

A broad array of ISPs and industry trade associations sought permission to submit an amicus brief, request to which RIAA hasn’t agreed. In addition to endorsing Verizon’s constitutional arguments, industry groups said they would urge court to consider how RIAA’s reading of Sec. 512(h) would affect customers’ rights. “The customer, after all, may never receive any notice of the demand for confidential information concerning his or her identity,” ISPs said. Without knowledge of demand for information, customer has no opportunity to be heard, they said, and, once disclosure is ordered and their identities are made known, any challenge to subpoena is moot. “A more egregious example of a due process violation is difficult to imagine,” ISPs said.

Service providers will urge court to read Sec. 512(h) as creating “supplemental, and specialized,” subpoena procedure that applies only in pending proceedings involving ISPs, they said. Groups on brief include Caprica Internet Services, Computer & Communications Industry Assn., InKeeper Co, Internet Industry Assn., LRBCG.COM Inc., Mercury Network Corp., Progressive Internet Action, Southern Star, Texas Internet Service Providers Assn., Washington Assn. of Internet Service Providers, WiredSafety.org., ZZAPP Internet Services.

In separate statement, WiredSafety.org Exec. Dir. Perry Aftab said that while her Internet safety and help group “strongly” supported right of copyright owners to file lawsuits to obtain information about and to prosecute infringers, “the unfettered ability of anyone to gather personal information about anyone else by misusing the DMCA subpoena hurts innocent Internet users far more than it helps copyright holders.”

In declaration offered on Verizon’s behalf, Juley Fulcher, dir.-public policy for National Coalition Against Domestic Violence, said her organization was “deeply concerned” that spouse, ex-spouse or someone else looking to harm women or children living in shelters would misuse DMCA subpoenas to find them. RIAA may be concerned about infringement on its members’ copyrights, Fulcher said: “We believe, however, that if even one beating, rape or other harm occurs as a result of this subpoena process, the potential harm clearly outweighs whatever benefits are afforded under this process.”

RIAA has issued 3rd subpoena seeking information on Verizon subscriber. ISP has notified RIAA that it doesn’t consider subpoena valid, company spokeswoman said, but it hasn’t yet challenged it in court.

Recording industry’s opposition brief is due March 27. Verizon then has until March 31 to reply.