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IN RE VERIZON INTERNET SERVICES

January 21, 2003

IN RE: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter, RECORDING INDUSTRY ASSOCIATION OF AMERICA, Plaintiff,
v.
VERIZON INTERNET SERVICES, Defendant.



The opinion of the court was delivered by: JOHN D. BATES, United States District Judge

MEMORANDUM OPINION

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 provider's network.

  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 user.

  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.

  BACKGROUND

  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 seq., and

[240 F. Supp.2d 27]

      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

[240 F. Supp.2d 28]

      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) & (d)(3).

  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 owner's copyright.

  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

[240 F. Supp.2d 29]

      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.

  ANALYSIS

  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 legislation,

[240 F. Supp.2d 30]

      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" (§ 512(h)(5)).

  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:
(k) Definitions. —
(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 ...

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