The opinion of the court was delivered by: JOHN D. BATES, United States District Judge
The Recording Industry Association of America ("RIAA")*fn1 has moved
to enforce a subpoena served on Verizon Internet Services ("Verizon")
under the Digital Millennium Copyright Act of 1998 ("DMCA" or "Act"),
17 U.S.C. § 512. On behalf of copyright owners, RIAA seeks the
identity of an anonymous user of Verizon's service who is alleged to have
infringed copyrights with respect to more than 600 songs downloaded from
the Internet in a single day. The copyright owners (and thus RIAA) can
discern the Internet Protocol address, but not the identity, of the
alleged infringer only the service provider can identify the
user. Verizon argues that the subpoena relates to material transmitted
over Verizon's network, not stored on it, and thus falls outside the
scope of the subpoena power authorized in the DMCA.
RIAA counters that the subpoena power under section 512(h) of the DMCA
applies to all Internet service providers, including Verizon, whether the
infringing material is stored on or simply transmitted over the service
The case thus presents a core issue of statutory interpretation
relating to the scope of the subpoena authority under the DMCA. The
parties, and several amici curiae, agree that this is an issue of first
impression of great importance to the application of copyright law to the
Internet. Indeed, they concede that this case is presented as a test case
on the DMCA subpoena power.
Based on the language and structure of the statute, as confirmed by the
purpose and history of the legislation, the Court concludes that the
subpoena power in 17 U.S.C. § 512(h) applies to all Internet service
providers within the scope of the DMCA, not just to those service
providers storing information on a system or network at the direction of a
Therefore, the Court grants RIAA's motion to enforce, and orders
Verizon to comply with the properly issued and supported subpoena from
RIAA seeking the identity of the alleged infringer.
An assessment of this issue requires some understanding of both the
DMCA and the subpoena served by RIAA on Verizon. Although the subpoena
power is specifically delineated in section 512(h), that language cannot
be isolated from the structure and purpose of the DMCA, and RIAA's
subpoena to Verizon must be assessed in that context.
1. The Digital Millennium Copyright Act
The DMCA amended chapter 5 of the Copyright Act, 17 U.S.C. § 501 et
created a new section 512 entitled "Limitations on liability
relating to material online." As the title indicates, the DMCA is
designed primarily to limit the liability of Internet service providers
for acts of copyright infringement by customers who are using the
providers' systems or networks. Section 512 contains limitations on the
liability of service providers for four general categories of activity
set forth in subsections (a) through (d). The statute thereby creates a
series of "safe harbors" that allow service providers to limit their
liability for copyright infringement by users if certain conditions under
the Act are satisfied. "The limitations in subsections (a) through (d)
protect qualifying service providers from liability for all monetary
relief for direct, vicarious and contributory [copyright] infringement."
S. Rep. No. 105-190, at 20 (1998).
Under the DMCA, an Internet service provider falls within one of these
four subsections based on how the allegedly infringing material has
interacted with the service provider's system or network. To qualify for
a "safe harbor," the service provider must fulfill the conditions under
the applicable subsection and the conditions of subsection (i), which
includes the requirement that a service provider implement and inform its
users of its policy to terminate a subscriber's account in cases of
repeat copyright infringement. See 17 U.S.C. § 512(i)(1)(A). Under
subsection (a), which Verizon contends is applicable here, if the service
provider meets certain conditions it will not be liable for the user's
copyright infringement when the service provider transmits the
copyrighted material over its system or network:
(a) Transitory digital network communications.
A service provider shall not be liable . . .
for infringement of copyright by reason of the
provider's transmitting, routing, or providing
[Internet] connections for, material through a system
or network controlled or operated by or for the
service provider, or by reason of the intermediate and
transient storage of that material in the course of
such transmitting, routing, or providing connections. . . .
Id. § 512(a). On the other hand, subsection (c), the other subsection
most relevant here, pertains to copyrighted material that is stored on
the service provider's network or system:
(c) Information residing on systems or networks at
direction of users. . . . A service provider
shall not be liable . . . for infringement of
copyright by reason of the storage at the direction of
a user of material that resides on a system or network
controlled or operated by or for the service
provider. . . .
Id. § 512(c)(1).*fn2
Under subsection (c), a service provider must
also designate an agent to receive notifications of claimed infringement
from copyright owners. Id. § 512(c)(2).
Of particular importance here, subsection (c)(3)(A) spells out
requirements to be met by copyright owners for effective notification of
copyright infringement under subsection (c). The notification of claimed
infringement must be in a writing provided to the designated agent, and
must include the following a "signature of a person authorized to
act on behalf of the [copyright] owner"; identification of the
copyrighted work allegedly infringed (or a list
of multiple copyrighted
works covered by a single notification); identification of the allegedly
infringing material "that is to be removed or access to which is to be
disabled," and information to enable the provider to locate the
material; information to permit the provider to contact the complaining
party; a statement of good faith belief that the use complained of is not
authorized; and a "statement that the information in the notification is
accurate, and under penalty of perjury, that the complaining party is
authorized to act on behalf of the owner." Id. §
512(c)(3)(A)(i)-(vi). This notification requirement is located within
subsection (c), and there is no similar notification requirement within
subsection (a) or elsewhere in section 512. The subsection (c)(3)
notification requirement is referenced, however, in the conditions under
both subsection (b) and subsection (d). See id. §§ 512(b)(2)(E) &
The DMCA also contains a novel provision in subsection (h)
which lies at the heart of the dispute before the Court
permitting a copyright owner to obtain and serve a subpoena on a service
provider seeking the identity of a customer alleged to be infringing the
The subpoena is issued by the clerk of any United States District Court
upon a request by the copyright owner (or one authorized to act on the
owner's behalf) containing the proposed subpoena, "a copy of a
notification described in subsection (c)(3)(A)," and a sworn declaration
ensuring that the subpoena is solely to obtain the identity of the
alleged infringer, which information will be used only to protect rights
to the copyright. Id. § 512(h)(2). The subpoena, in turn, authorizes
and orders the recipient service provider "to expeditiously disclose"
information sufficient to identify the alleged infringer. Id. §
512(h)(3). The clerk "shall expeditiously issue" the subpoena if it is in
proper form, the declaration is properly executed, and "the notification
filed satisfies the provisions of subsection (c)(3)(A)." Id. §
512(h)(4). The service provider, upon receipt of the subpoena, "shall
expeditiously disclose" the information required by the subpoena to the
copyright owner (or authorized person). Id. § 512(h)(5). The
issuance, delivery and enforcement of subpoenas is to be governed (to the
extent practicable) by the provisions of the Federal Rules of Civil
Procedure dealing with subpoenas duces tecum. Id. § 512(h)(6).
2. RIAA's Subpoena to Verizon
On July 24, 2002, RIAA served a subpoena on Verizon seeking identifying
information about an anonymous copyright infringer allegedly using
Verizon's network to download copyrighted songs through peer-to-peer
software provided by KaZaA, without the copyright holders'
authorization. See Motion to Enforce, Ex. A. Along with the subpoena,
RIAA provided Verizon with a list of more than 600 files (predominantly
individual songs, most by well-known artists) allegedly downloaded by the
user on one day. Id., Ex. B. The subpoena included the user's specified
Internet Protocol (IP) address, to enable Verizon to locate the computer
where the infringement occurred. In addition to the IP address, RIAA
provided the time and date when the songs were downloaded and furnished a
declaration, under penalty of perjury, that the information was sought in
good faith and would only be used in connection with "protecting the
rights" of RIAA members. Id., Ex. B (letter from Whitehead to Crowder
dated July 24, 2002). RIAA also requested that Verizon "remove or disable
access to the infringing sound files." Id.
Verizon responded by letter refusing to comply with RIAA's subpoena.
Id., Ex. D (letter from Daily to Whitehead
dated Aug. 6, 2002). Verizon
emphasized its view that the DMCA subpoena power applies only if the
infringed material is stored or controlled on the service provider's
system or network under subsection (c). Id. at pp. 2-3. Verizon stated:
"The allegedly infringing contents of the [downloaded files] do not
reside on any system or network controlled or operated by or for
[Verizon], but . . . are stored on the hardware of the Customer. Thus,
neither § 512(c)(3)(A) nor § 512(h) is applicable for this reason
alone." Id. According to Verizon, a subpoena under the DMCA is
"conditioned" on notification under section 512(c)(3)(A), "and that
provision is addressed to `material that resides on a system or network
controlled or operated by or for [a] service provider.'" Id. (emphasis in
original). In contrast, Verizon stressed, it only provided the customer
with Internet connectivity service. Id. Verizon also refused RIAA's
request to terminate the user's Internet connection. Id. at 3. Verizon's
position, therefore, is that because it only provided the alleged
infringer with an Internet connection, it falls under subsection (a) of
section 512, not under subsection (c), and it is thus outside the
subpoena authority of subsection (h), which Verizon contends is limited
to service providers storing material under subsection (c).
RIAA, on the other hand, is of the view that the DMCA subpoena power
under section 512(h) applies to all service providers within the
provisions of subsections (a) through (d), including Verizon in the
instant case.*fn3 Given Verizon's refusal to comply with the subpoena,
RIAA moved pursuant to 17 U.S.C. § 512(h)(6) and Fed.R.Civ.P.
45(c)(2)(B) to enforce the subpoena. Substantial briefing (including
submissions by amici curiae on both sides) and a hearing followed.
This case turns on the meaning and scope of the provisions of the
DMCA. "As in all statutory construction cases, we begin with the language
of the statute." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002);
see also United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C.
Cir. 2002). The first step "is to determine whether the language at issue
has a plain and unambiguous meaning with regard to the particular dispute
in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (citing
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).
If so, and if the statutory scheme is "coherent and consistent," then
the inquiry ceases. Barnhart, 534 U.S. at 450 (quoting Robinson, 519
U.S. at 340). Nonetheless, "[s]tatutory construction `is a holistic
endeavor,' and, at a minimum, must account for a statute's full text,
language as well as punctuation, structure, and subject matter."
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) (quoting
United Savings Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd.,
484 U.S. 365, 371 (1988)). Hence, "courts should disfavor interpretations
of statutes that render language superfluous." Connecticut Nat'l Bank,
503 U.S. at 253.
But as the Supreme Court has explained:
[C]anons of construction are no more than rules of
thumb that help courts determine the meaning of
and in interpreting a statute a court
should always turn first to one, cardinal canon before
all others. We have stated time and again that courts
must presume that a legislature says in a statute what
it means and means in a statute what it says there.
Id. at 254; accord Ron Pair Enters., Inc., 489 U.S. at 241-42; United
States v. Goldenberg, 168 U.S. 95, 102-103 (1897). "When the words of a
statute are unambiguous, then, this first canon is also the last:
`judicial inquiry is complete.'" Connecticut Nat'l Bank, 503 U.S. at 254
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); see also
Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) ("There are, we
recognize, contrary indications in the statute's legislative history. But
we do not resort to legislative history to cloud a statutory text that is
clear."); Barnhill v. Johnson, 503 U.S. 393, 401 (1992).
Here, the statutory language and structure lead to a single result
the section 512(h) subpoena authority applies to service
providers within not only subsection (c) but also subsections (a), (b),
and (d) of section 512. Moreover, the purpose and history of the DMCA are
consistent with that conclusion.
1. Statutory Definition of "Service Provider"
The statutory text of the DMCA provides clear guidance for construing
the subpoena authority of subsection (h) to apply to all service
providers under the Act. The term "service provider" is employed
repeatedly in subsection (h). The request to the clerk is "to issue a
subpoena to a service provider for identification of an alleged
infringer" (§ 512(h)(1)); the subpoena "shall authorize and order the
service provider receiving the notification and the subpoena" to disclose
the identifying information to the extent it is available to the service
provider (§ 512(h)(3)); a proper subpoena shall be executed by the
clerk, who shall return it to the requester "for delivery to the service
provider" (§ 512(h)(4)); and upon receipt "the service provider shall
expeditiously disclose" the information required by the subpoena
"regardless of whether the service provider responds to the notification"
The question, then, is whether the "service provider" repeatedly
referenced in subsection (h) is limited to one described by subsection
(c) or instead includes those described in subsections (a), (b) and (d)
of section 512 as well. The DMCA answers that question unequivocally.
The Act provides two distinct definitions of "service provider"
a narrow definition as the term is used solely within subsection
(a), and a broader definition governing all other subsections, which
specifically includes a "service provider" under subsection (a) as well:
(1) Service provider.
(A) As used in subsection (a), the term "service
provider" means an entity offering the transmission,
routing, or providing of connections for digital
online communications, between or among points
specified by a user, of material of the user's
choosing, without modification to the content of the
material as sent or received.
(B) As used in this ...