D.C. APPEALS COURT SIDES WITH VERIZON IN RIAA SUBPOENA SUIT
Verizon won a major reversal Fri. in its suit against the RIAA, as the U.S. Appeals Court, D.C., agreed with the ISP that it needn’t comply with subpoenas on information on suspected peer-to-peer file sharers.
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Chief Judge Douglas Ginsburg wrote a 3-0 decision that overturned the U.S. Dist. Court, D.C., which had ruled that Sec. 512(h) of the Digital Millennium Copyright Act (DMCA) required ISPs to comply with subpoenas brought by copyright owners, even if the ISP wasn’t storing the alleged pirated content on its servers. Ginsberg granted Verizon’s stay request on the Dist. Court ruling. The other judges were John Roberts and Ann Williams.
Ginsburg concluded that the language in the DMCA specifically referred to content held by ISPs. He acknowledged the 1998 law was written before P2P and its potential impact on the content community. “Had the Congress been aware of P2P technology, or anticipated its development, 512(h) might have been drafted more generally,” Ginsburg wrote. He said that while he’s “not unsympathetic” with the copyright infringement occurring on P2P networks, “it is not the province of the courts, however, to rewrite the DMCA in order to make it fit a new and unforseen Internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries.”
RIAA now will have to file a traditional John Doe suit, Verizon Assoc. Gen. Counsel Sarah Deutsch said. Filing a suit against a suspect whose personally identifiable information isn’t known isn’t uncommon but requires more judicial review than the DMCA procedure, under which a copyright holder needed only a court clerk’s signature. A John Doe suit will be under the supervision of a judge, which Deutsch said preserves “the privacy, safety and legal rights” of Internet subscribers.
RIAA Pres. Cary Sherman said “we can and will continue to file copyright infringement lawsuits against file sharers who engage in illegal activity.” He called the decision “inconsistent with both the views of Congress and the findings of the District Court,” but didn’t say whether RIAA would appeal. RIAA hadn’t answered a call for comment by our deadline. Sherman did say that the ruling “unfortunately means we can no longer notify illegal file sharers before we file lawsuits against them to offer the opportunity to settle outside of litigation. Verizon is solely responsible for a legal process that will now be less sensitive to the interests of its subscribers who engage in illegal activity.”
RIAA last week wrote several major ISPs urging their cooperation in sending notification letters to suspected infringers. In a letter obtained by Washington Internet Daily that was cc'd to 8 congressional chairman and ranking members focused on the subpoena issue, Sherman and Bainwol asked ISPs to send Notice of Infringement letters to the subscribers associated with IP addresses that RIAA would provide. “As you know,” they wrote, “while we can obtain the [IP] address of a subscriber who is using your Internet service to infringe a copyright owned by one of our members, only you know the actual identity of the subscriber affiliated with that address.” Sherman and Bainwol said if the ISPs sent letters to suspected infringers that RIAA didn’t identify with DMCA subpoenas, that effort “will help ensure that a vibrant and legitimate market for online music can succeed while also potentially sparing customers from becoming defendants in future copyright infringement suits.” They also promised to continue using the DMCA subpoena process, a vow undermined by the Fri. court decision.
Senate Governmental Affairs Investigations Subcommittee Chmn. Coleman (R-Minn.) has criticized the RIAA subpoenas, and it was at a hearing he conducted that RIAA Chmn. Mitch Bainwol pledged to send warning letters. Coleman said the case showed litigation wouldn’t solve the recording industry’s problem. He has threatened legislation to put restrictions on the DMCA subpoena power. He said he would continue to work toward a solution but his spokesman didn’t respond to a query about the senator’s intentions on legislation.
House Internet Caucus Co-Chmn. Boucher (D-Va.), a longtime critic of DMCA whose bill (HR-107) would amend a different portion of the law, said the decision would protect the privacy of Internet users. He was involved in the creation of the DMCA and said “Congress never intended that subpoenas be issued in the circumstances under which they have been requested by the recording industry.”
Ginsburg took a direct tone in his decision, at one point suggesting that RIAA’s argument that Sec. 512(h) applied to an ISP regardless of whether it was storing material “borders upon the silly.” “It’s unusual for them to say that,” said Morrison & Foerster attorney Jonathan Band. Such strong language “sort of sends a signal” to any other court that might address the issue.
RIAA has several options for attempting to reverse the decision. It can call for an en banc hearing of all the Appeals Court judges, although Band said that wasn’t likely to be granted, given a 3-0 decision written by the chief judge. RIAA also could appeal to the U.S. Supreme Court, but Band said that court might be reluctant to take it as there had been no split rulings in different circuits. But RIAA could press the DMCA subpoena issue in another circuit and hope for a favorable ruling to create a split.
Verizon had made 3 arguments to the appeals court: (1) That 512(h) didn’t apply to an ISP merely providing a conduit for file sharers, which the court accepted. (2) That the district court lacked jurisdiction to issue subpoenas. (3) That 512(h) violated the First Amendment because it prevented anonymous speech. The appeals court didn’t rule on the latter 2 arguments.
Verizon isn’t the only ISP that has resisted the DMCA subpoena process, used this year by RIAA to gather the information necessary to file suits against more than 300 alleged unauthorized file sharers. RIAA has issued nearly 3,000 subpoenas to ISPs to identify alleged infringers. SBC also has resisted. Its case against RIAA recently was relocated to the same D.C. district court that had ruled in RIAA’s favor, a move the association welcomed. SBC Fri. called the ruling “a clear and unmistakable message to the recording industry” that “strongly affirms our positions since we began our legal battle.” The company vowed to “continue to oppose DMCA subpoenas wherever they may be presented to us in order to protect the privacy rights of our customers.”
The DMCA requires an ISP to identify infringed material brought to its attention by a content holder and to remove that content or disable access to it. But Ginsburg pointed out that Verizon couldn’t do that because it wasn’t storing the alleged infringing content. The RIAA argued that Verizon could disable access if it closed the user’s Internet account. However, Ginsburg cited Verizon’s argument that “Congress considered disabling an individual’s access to infringing material and disabling access to the Internet to be different remedies for the protection of copyright owners,” citing different statutes.
Several trade groups praised the court’s decision. The U.S. Internet Industry Assn. (USIIA), of which Verizon is a member, said the court rightly ruled that copyright holders didn’t have the right to “invade the personal privacy and security of American consumers on the basis of allegations.” The Computer & Communications Industry Assn. (CCIA), a strong supporter of Boucher’s DMCA rewrite bill, said the decision still would permit identities to be revealed by ISPs “when appropriate” but would negate the RIAA’s “scorched earth” approach. Public Knowledge called the ruling “an early holiday present,” while the Electronic Frontier Foundation (EFF) said it would prevent record companies from stifling free speech.
The Dist. Court ruling in Jan. forced Verizon to begin complying with the RIAA subpoenas, although the carrier immediately appealed and sought a stay. The appeals court held oral argument in Sept.