While the Recording Industry Association of America (RIAA) could obtain a subpoena by other means, this holding is significant because Section 512(h) provides a fast and efficient means of obtaining subpoenas for ISP's information that identifies infringers. In particular, it requires no notice to, or opportunity to be heard by, the alleged infringer.

Verizon stated that it will appeal.

Statute. § 512 provides ISPs a safe harbor from liability for infringement based on the activities of their users. There are four specific limitations on liability. § 512(a) pertains to "transmitting, routing, or providing 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". § 512(b) pertains to "the intermediate and temporary storage of material on a system or network". § 512(c) pertains to "material that resides on a system or network controlled or operated by or for the service provider". And, § 512(d) pertains to "referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link".

Subsection 512(h) then provides, in part, that "A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection." The statute then provides that the requester should also provide a copy of the 512(c)(3) notice, a proposed subpoena, and a sworn declaration. However, the statute does not expressly limit the availability of 512(h) subpoenas to 512(c) situations.

Subsection 512(h)(5) then provides, in part, that "Upon receipt of the issued subpoena, ... the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification."

Background. The Recording Industry Association of America (RIAA) alleges that a Verizon user has used Verizon's network to download copyrighted songs with peer to peer file copying software provided by Kazaa. It obtained a 512(h) subpoena, and served it upon Verizon. Verizon refused to comply. It stated in an August 6, 2002 letter that 512(h) subpoena power applies only if the infringed material is stored or controlled on the service provider's system or network under 512(c). See also, TLJ story titled "Verizon and Privacy Groups Oppose RIAA Subpoena", August 30, 2002.

The RIAA possesses only Internet Protocol (IP) number information on infringers. Verizon possesses information that would associate subscriber information with IP number information. That is, obtaining Verizon's information would enable the RIAA, or its members, to file complaints alleging infringement against the individual infringers.

Holding. The District Court, Judge John Bates presiding, wrote a 39 page opinion in which it held, based upon both statutory construction, and the legislative history and purpose of the statute, that 512(h) subpoenas are available when the alleged infringer merely uses the ISP's network to transfer infringing content. The content need not be stored on the ISP's servers.

The Court concluded that "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."

It added that "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."

The Court elaborated that "Because peer-to-peer users most often swap materials over the Internet that are stored on their own computers -- not on the service providers' networks -- such activity is within subsection (a), not subsection (c). Thus, under Verizon's reading of the Act, a significant amount of potential copyright infringement would be shielded from the subpoena authority of the DMCA. That would, in effect, give Internet copyright infringers shelter from the long arm of the DMCA subpoena power, and allow infringement to flourish. The Court can find nothing in the language or structure of the statute that suggests Congress intended the DMCA to protect only a very limited portion of copyrighted material on the Internet." (Footnote omitted.)

The Court also examined the legislative history and purpose of Section 512. It wrote that "Congress thus created tradeoffs within the DMCA: service providers would receive liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers' systems. At the same time, copyright owners would forgo pursuing service providers for the copyright infringement of their users, in exchange for assistance in identifying and acting against those infringers."

The Court continued that "Congress was concerned about the ability of copyright owners to protect their creative investments in light of rapid technological innovations on the Internet that make copyright theft easy, virtually instantaneous, and undetectable. Therefore, in exchange for the liability protections afforded to service providers in subsections (a) through (d) of the DMCA, Congress sought through subsection (h) to require service providers to assist copyright owners in identifying infringers using the service providers' systems. If, as Verizon contends, service providers only have such obligations when the infringing material is stored on their systems, then service providers falling within subsection (a) -- a large portion of those addressed by the DMCA -- would receive the liability protections of the Act without the corresponding obligation to assist copyright owners in identifying infringers. There is no logical connection between the line Verizon seeks to draw and the objectives Congress sought to achieve through the DMCA. Verizon's reading would thus undermine the balance Congress established in the DMCA, and does not comport with the Act's purpose and history."

Reaction. RIAA President Cary Sherman stated in a release that "We appreciate the court's decision, which validates our interpretation of the law. The illegal distribution of music on the Internet is a serious issue for musicians, songwriters and other copyright owners, and the record companies have made great strides in addressing this problem by educating consumers and providing them with legitimate alternatives. Now that the court has ordered Verizon to live up to its obligation under the law, we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal."

Verizon VP and Associate General Counsel Sarah Deutsch stated in a release that "The court's decision has troubling ramifications for consumers, service providers and the growth of the Internet. It opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts. This case will have a chilling effect on private communications, such as e-mail, surfing the Internet or the sending of files between private parties."

Deutsch added that "Verizon is not attempting to shield customers who break copyright laws. We are, however, seeking to protect the fundamental privacy and due process rights that should be afforded to our customers and all Internet users. We will appeal the decision."

The DARPA web site states that this project "will imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness useful for preemption; national security warning; and national security decision making." The DARPA is headed by Anthony Tether. John Poindexter is the head of the DARPA's TIA project.

The DOD made the statement regarding the FBI in its responses to a set of questions propounded by Sen. Charles Grassley (R-IA) in a November 22, 2002 letter. Sen. Grassley asked, among other things, "What coordination has the program had with Federal law enforcement officials?"

The DOD responded to Sen. Grassley on January 17 that "Dr. Tether has advised of contacts with the Federal Bureau of Investigation (FBI), Foreign Terrorist Tracking Task Force, Department of Justice, and components of the Department of Homeland Security, DARPA officials note it is their understanding that the FBI is working on an MOU with DARPA for possible experimentation with TIA technology in the future."

Sen. Grassley responded by writing a letter on January 21 to Attorney General John Ashcroft. Sen. Grassley noted that the Department of Justice (DOJ), of which the FBI is a part, had previously denied receiving information on TIA. Sen. Grassley then stated, "I am very concerned that DoJ and the FBI may have been less than forthright to the press and the American people about their involvement with TIA. Please provide a complete accounting, including timeline, of DoJ and FBI’s actions regarding TIA as well as the draft MOU."

On January 17, Sen. Grassley (at right) offered an amendment (SA 53) to HJRes 2, the further appropriations for FY 2003 resolution, which the Senate is currently debating. His amendment would provide that no federal funds can be spent on the TIA project unless "(1) such technology or component is to be used, and is used, only for foreign intelligence purposes; and (2) such technology or component is not to be used, and is not used, for domestic intelligence or law enforcement purposes". This amendment would also require a detailed report.

In addition, also on January 17, Sen. Ron Wyden (D-OR), and others, offered a related amendment (SA 59). This amendment contains several provisions. One provides that it is the sense of the Congress that "the Total Information Awareness program should not be used to develop technologies for use in conducting intelligence activities or law enforcement activities against United States persons without appropriate consultation with Congress or without clear adherence to principles to protect civil liberties and privacy".

The amendment further provides that it is the sense of the Congress that "the primary purpose of the Defense Advanced Research Projects Agency is to support the lawful activities of the Department of Defense and the national security programs".

The Wyden amendment would also provide that no federal funds can be spent on TIA unless the DOD, DOJ and CIA submit a joint report within 60 days that "contains ... a detailed explanation of the actual and intended use of funds for each project and activity of the Total Information Awareness program ...", or "the President certifies to Congress in writing, that" such report is "not practicable" and "the cessation of research and development on the Total Information Awareness program would endanger the national security of the United States".

Also, on January 16, Sen. Russ Feingold (D-WI) introduced a stand alone bill, S 188, the Data Mining Moratorium Act of 2003. This bill, which is cosponsored by Sen. Wyden, would require the DOD and the Department of Homeland Security to suspend the development of data mining systems, including the TIA project. (See, story titled "Sen. Feingold Introduces Data Mining Moratorium Bill", in TLJ Daily E-Mail Alert No. 586, January 20, 2003.)

The bill provides that until "there is enacted a law specifically authorizing data-mining", "no officer or employee of the Department of Defense or the Department of Homeland Security may take any action to implement or carry out for data-mining purposes any part of (including any research or development under) (1) the Department of Defense component of the Total Information Awareness program or any other data-mining program of the Department of Defense; or (2) any data-mining program of the Department of Homeland Security that is similar or related to the Total Information Awareness program."

Sen. Grassley also asked the DOD in his November 22, 2002 letter, "What protections are in place to ensure civil liberties are not violated?" The DOD responded on January 17 that "Dr. Tether has advised that part of the TIA project will focus on the development of privacy protections that do not currently exist, along with other advanced security and system hardening characteristics as part of the TIA program. The IG, DoD, audit will ``assess whether the proper controls are being included in the developmental contracts to ensure that the technology is properly managed and controlled when placed in an operational environment.´´ The audit will also assess the adequacy of computer security protections and human access protections intended to protect civil liberties."

11:00 AM. The Federal Trade Commission (FTC) will hold a press conference to announce its Consumer Sentinel State Trends Report, which includes the top ten fraud complaint categories and fraud and identity theft complaint trends. See, FTC notice. Location: FTC, 600 Pennsylvania Ave., NW, Room 432.

5:00 PM. The FCBA's Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at the University of Baltimore for law students interested in practicing communications law.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The Transition to Digital Television". The price to attend is $60 for FCBA members, $50 for government/law student members, and $80 for non-members. Registrations & cancellations are due by 5:00 PM on January 21. RSVP to Wendy Parish wendy@fcba.org. Location: Wiley Rein & Fielding Conference Center, 1750 K Street, NW, 10th Floor.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in § 20.18(h) of the FCC’s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.

12:30 PM. Rep. Nancy Pelosi (D-CA) and Sen. Tom Daschle (D-SD) will speak at a luncheon. Location: National Press Club, 529 14th St. NW, 13th Floor.

The Supreme Court will be in recess from January 27 through February 23.

Day one of a two day conference titled "First International Conference on the Economic
and Social Implications of Information Technology". The scheduled speakers include Secretary of Commerce Don Evans, John Marburger (President’s Science Advisor), Floyd Kvamme (Co-Chairman of the President’s Council of Advisors on Science and Technology, or PCAST), Sam Bodman (Deputy Secretary of Commerce), Nancy Victory (NTIA Directory), Phil Bond (Under Secretary for Technology), and Bruce Mehlman (Assistant Secretary for Technology Policy). See, notice and schedule. The price to attend is $100, and $60 for government, academic, and nonprofit personnel. Location: Main Auditorium, Department of Commerce, 14th St. and Constitution Ave.

Day one of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Extended deadline to submit comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Day two of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

9:30 AM. The Senate Judiciary Committee will hold a hearing on pending judicial nominations. Location: Room 226, Dirksen Building.

10:00 AM. Region 20 (District of Columbia, Maryland, and Northern Virginia) Public Safety Planning Committees (NPSPAC) on 800 MHz  and 700 MHz will meet. Location: Potomac Community Public Library, Woodbridge, VA.

1:15 - 2:15 PM. Panel discussion titled "The Low Down on High-Tech Communications Policy and Regulation" at the COMNET Conference & Expo. The panelists will be Richard Wiley (Wiley Rein & Fielding), Kevin Kayes (Democratic Staff Director, Senate Commerce Committee), Michael Gallagher (Deputy Director of the NTIA), James Ramsay (General Counsel of NARUC), and Bryan Tramont (Senior Legal Advisor to FCC Chairman Michael Powell). See, conference web site. Location: Washington Convention Center.

4:00 PM. The Cato Institute will host a book forum on Rethinking the Network Economy: The True Forces that Drive the Digital Marketplace, by Stan Liebowitz. John Lott (American Enterprise Institute) and Tom Lenard (Progress and Freedom Foundation) will comment. Webcast. A reception will follow. See, Cato notice. Location: Cato, 1000 Massachusetts Ave., NW.

Day three of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the consent agreement that it entered into with Quicken Loans Inc. On December 30, 2002, the FTC filed an administrative Complaint [8 pages in PDF] against Quicken Loans, an online lender, alleging that it violated the Fair Credit Reporting Act (FCRA). The FTC and Quicken Loans also settled the matter. See, Agreement Containing Consent Order [7 pages in PDF]. See also, story titled "FTC Charges Quicken Loans with Violation of FCRA" in TLJ Daily E-Mail Alert No. 575, January 3, 2003. See, notice in the Federal Register, January 21, 2003, Vol. 68, No.  13, at Pages 2775-2776.

1/21. The General Accounting Office (GAO) released a report [PDF] on the "Purchases of Degrees from Diploma Mills". It GAO found that a search of a government sponsored resume database identified over a thousand resumes with bogus degrees. It wrote that "A the time of our investigation, the Oregon State Office of Degree Authorization identified 43 institutions as diploma mills or unaccredited institutions. To determine the reason for which the degrees had been purchased, we requested that a government sponsored Internet résumé repository query its database to determine if any résumés it contained listed degrees from entities identified by the state of Oregon as diploma mills. We received a database of more than 1,200 résumés that included degrees from 14 of the 43 diploma mills."

1/21. Morgan Guenther resigned as President of TiVo. TiVo, which makes digital video recorders, has not named his replacement. See, TiVo release.

Tech Law Journal is instituting several new practices and procedures with the New Year. All of these changes have one central purpose -- protecting the rights of the author, David Carney.

The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert (TLJ Alert) are both authored and published by David Carney. This is a business. The sole source of revenue for this business is subscription payments for the TLJ Alert. Yet, it is currently being widely infringed. This is undermining the financial viability of the business.

See, Letter from the Publisher, which summarizes the new practices and procedures.

See, Subscription Information page for price schedule, methods of payment, and related matters.

See, Memorandum regarding "E-Mail Monitoring".

See, Memorandum regarding "Disclosure of Information to Third Parties".

See, Memorandum to law students explaining why free subscriptions for law students will end after the January 17 issue.

See, Memorandum regarding "Termination of state officials' subscriptions" explaining why free subscriptions for state government officials will end after the January 17 issue.

See, Subscription Form and Contract (for firms, companies, groups, and other entities), or the shorter Subscription Form and Contract (for persons subscribing individually). These contracts are for new paying subscribers, and paying subscribers renewing their subscriptions. Persons receiving free subscriptions (journalists and government officials) should not sign a contract. Paying subscribers whose subscription term has not expired should not sign a contract, until their existing subscription term expires and they resubscribe.

And finally, see revised Privacy Policy.