News from April 16-20, 2003

DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter

4/18. The Department of Justice (DOJ) filed a brief with the U.S. District Court (DC) in RIAA v. Verizon in which it responds to certain issues raised by Verizon, and questions propounded by the Court, regarding the constitutionality of the § 512(h) subpoena provisions of the Digital Millennium Copyright Act (DMCA).

The DOJ argues that the statute does not violate either the Article III based justiciability requirements of the Constitution, or the First Amendment's free speech clause. The DOJ argues that Verizon's motion to quash should be denied.

Statute. 17 U.S.C. § 512 provides internet service providers (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."

This subpoena procedure requires no notice to, or opportunity to be heard by, the alleged infringer.

RIAA Verizon Dispute. 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.

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.

The RIAA obtained a subpoena pursuant to § 512(h), and served it upon Verizon. Verizon refused to comply. It argued that the § 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). Verizon moved to quash the subpoena. The RIAA brought this action to enforce its subpoenas. See also, TLJ story titled "Verizon and Privacy Groups Oppose RIAA Subpoena", August 30, 2002.

Previous District Court Ruling. The District Court rejected this construction of the statute in its opinion of January 21, 2003. It held that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems.

See also, TLJ story titled "District Court Rules DMCA Subpoenas Available for P2P Infringers", January 21, 2003.

DOJ Brief. The issues addressed by the DOJ's current brief are whether Article III authorizes federal courts to issue binding judicial process outside a pending case or controversy, and whether § 512(h) of the DMCA violates the First Amendment because it does not provide adequate procedures for the protection of the expressive and associational interests of Internet users and because it is substantially overbroad in its potential applications.

The DOJ brief, which was written by Theodore Hirt and John Zacharia, states that "nothing in Article III of the Constitution precludes Congress from authorizing the clerk of a federal ``Article III´´ court from issuing a subpoena unless a case is actually ``pending´´ in an Article III court. In fact, Congress has repeatedly exercised its authority to direct federal district court clerks to issue subpoenas on behalf of private parties involved in controversies before non-Article III tribunals, such as private parties litigating a patent interference claim before the Patent and Trademark Office." The brief also states that the Congress has previously authorized pre-litigation discovery under the Federal Rules of Civil Procedure.

Also, the DOJ brief argues that a § 512(h) subpoena "does not violate Article III because it expressly relates to a cognizable Article III controversy (a potential copyright infringement action), over which federal courts have exclusive jurisdiction." (Parentheses in original.) Moreover, "it relates to the Article III controversy between a copyright holder and an Internet service provider (``ISP´´) over the copyright holder's statutory right to certain information."

The DOJ brief also rejects Verizon's First Amendment arguments on the basis that nothing in § 512(h) proscribes speech or other expression. It argues that "Here, it is manifest that the DMCA's subpoena provision targets the identity of alleged copyright infringers, not spoken words or conduct commonly associated with expression."

Reaction. Matthew Oppenheim, SVP for Business and Legal Affairs at the RIAA, stated in a release that "The government's filing today supports the proposition that we have long advocated -- copyright owners' have a clear and unambiguous entitlement to determine who is infringing their copyrights online, and that entitlement passes Constitutional muster. Verizon's persistent efforts to protect copyright thieves on pirate peer-to-peer networks will not succeed."

E-Government Act Goes Into Effect

4/17. The Office of Management and Budget (OMB) announced the launch of the Office of Electronic Government, which was created by the "E-Government Act of 2002," which became effective on April 17. It is Public Law 107-347. It was enacted by the Congress in 2002 as HR 2458 (107th), and signed by the President on December 17, 2002.

The E-Government Act is intended to create a comprehensive framework for security and privacy, and expand the use of the Internet to deliver services. Mark Forman is the Administrator of E-Government and Information Technology at OMB. See also, OMB release [1 pages in PDF], and the Bush administration's E-Government Strategy [41 pages in PDF].

Rep. Adam Putnam (R-FL), Chairman the House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census, issued a release in which he praised the OMB, and stated that " Improving the efficiency, productivity and effectiveness of government through the utilization of technology is one of my top priorities as Chairman of the Subcommittee ... We will continue to conduct oversight hearings on key e-Government initiatives in order to identify challenges and impediments to successful implementation of this project in an effort to effect prompt resolution".

People and Appointments

4/17. Intel announced the retirement of Leslie Vadasz, effective June 1. He is currently EVP of Intel and President of Intel Capital. Intel named John Miner, an Intel VP, President of Intel Capital. See, Intel release.

4/17. President Bush announced his intent to appoint Charles Kruse, Steven McCormick, Kevin Rollins, and Robert Wright to be Members of the Advisory Committee for Trade Policy and Negotiations (ACTPN) for two year terms. See, White House release. Rollins is P/COO of Dell Computers. McCormick is P/CEO of the Nature Conservancy. Kruse is President of the Missouri Farm Bureau.

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4/17. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [17 pages in PDF] in which it granted in part, and denied in part, complaints brought by Core Communications and Z-Tel Communications against SBC Communications and its incumbent local exchange carrier (ILEC) subsidiaries. Core and Z-Tel alleged that they purchased access to the shared transport unbundled network element (UNE) from SBC and its subsidiaries, but that they refused to allow Core and Z-Tel to use that UNE to transport intraLATA toll traffic. The FCC found that SBC violated the SBC Ameritech Merger Order and Section 251. See also, FCC release and statement [PDF] of Commissioner Kathleen Abernathy regarding FCC jurisdiction.

4/18. The Department of Commerce's (DOC) International Trade Administration (ITA) released a report titled  "ExportIT China", which is also subtitled "Telecommunications and Information Technology Market Opportunities for Small and Medium-Sized Enterprises". See also, ITA release.

FCC Announces Agenda for April 23 Meeting

4/16. The Federal Communications Commission (FCC) announced the agenda of its Wednesday, April 23, meeting. See, FCC release [PDF].

The FCC will consider a Memorandum Opinion and Order (MOO) and Third Report and Order concerning eligibility, licensing and service rules for the 4.9 GHz band. This is WT Docket No. 00-32.

The FCC will consider a Notice of Inquiry (NOI) concerning broadband over power line systems that would operate on an unlicensed basis under Part 15 of FCC rules.

The FCC will consider a Second Report and Order and Further Notice of Proposed Rulemaking concerning the universal service support mechanism for schools and libraries. This is CC Docket No. 02-6.

The FCC will consider a Fourth Memorandum Opinion and Order in its proceeding titled "Amendment of Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission's Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide a Fixed Service in the 12.2-12.7 GHz Band". This is ET Docket No. 98-206.

Finally, the FCC will consider a First Report and Order concerning whether, and if so, how to reform the procedures for considering satellite license applications. This is IB Docket No. 02-34 and IB Docket No. 02-54.

The meeting will be held at 9:30 AM at the FCC, Room TW-C305, 445 12th Street, SW. The meeting will be webcast by the FCC.

People and Appointments

Nuala Kelly

4/16. Nuala Kelly was named Privacy Officer at the Department of Homeland Security (DHS). She is currently Chief Counsel for Technology at the Department of Commerce's (DOC) Technology Administration. She previously worked at Double Click as the VP for Data Protection and Chief Privacy Officer. She has also worked at the law firms of Sidley Austin and Hudson Cook. See also, statement by Secretary of Commerce Don Evans. Section 222 of the Homeland Security Act, which was enacted by the Congress last year as HR 5005 (107th), creates the position of Privacy Officer, and its responsibilities. It states that the responsibilities include "(1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; (2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974; (3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government; (4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; and (5) preparing a report to Congress ..."

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4/16. Federal Communications Commission (FCC) Chairman Michael Powell wrote letters to several members of Congress regarding the FCC's biennial review of its media ownership regulations. Powell's letter responds to letters [in PDF] that he received from Sen. Olympia Snowe (R-ME), Sen. John Sununu (R-NH), Sen. Sam Brownback (R-KS), Rep. Cliff Stearns (R-FL), Sen. Olympia Snowe (R-ME), Rep. Fred Upton (R-MI), Sen. John McCain (R-AZ), and Sen. Don Nickels (R-OK). Powell discussed the FCC's "present course toward completing this proceeding by early June 2003, without an additional, and unprecedented, notice and comment period."

4/16. Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, stated in a release that "I am pleased that Chairman Powell is listening to both Congress and the courts in regard to the broadcast ownership rules currently governing the mass media marketplace. Congress, in the Telecom Act of 1996, and the courts, in recent decisions, have told the FCC that it must justify its rules if they are to continue. I sincerely hope that Chairman Powell's colleagues will follow the law and work with him to reject calls to delay the process. This omnibus rulemaking is not an option -- it is an obligation. The FCC has compiled the most extensive record on ownership rules in the agency's history. It should be commended. The FCC has within its reach the tools necessary to get this proceeding done and, most importantly, to get it done right."

4/16. Eric Smith, President of the International Intellectual Property Alliance (IIPA), wrote a letter [3 pages in PDF] to U.S. Trade Representative (USTR) Robert Zoellick regarding support for protection of intellectual property rights in trade agreements. He wrote that "it is essential that copyright laws, vigorously enforced, continue to fuel creativity and promote and protect investment. In the ever changing environment in which we operate, a successful initiative will require a multi-pronged strategy: (a) the negotiation of Free Trade Agreements, both bilateral and plurilateral; (b) the aggressive application of U.S. trade laws, like Special 301 and our various unilateral trade preference programs (GSP, CBI, ATPA etc.); and (c) a truly joint effort to work together to secure the implementation by all our trading partners of the all-important WIPO ``Internet´´ Treaties, which provide the critical legal infrastructure for the growth of electronic commerce in copyrighted materials."

Go to News from April 11-15, 2003.