Verizon and Privacy Groups Oppose RIAA Subpoena

August 30, 2002. Verizon and a collection of privacy groups have filed briefs with the U.S. District Court (DC) in a proceeding brought by the RIAA for the purpose enforcing a subpoena of Verizon's Internet services subsidiary. The RIAA motion states that it seeks the identity of the user of "a computer connected to the Verizon network that is a hub for significant music piracy". Verizon argues that the asserted basis for the subpoena, the DMCA, does not extend to situations such as this, where the alleged infringing material is stored on the computer of Verizon's customer, as opposed to Verizon's own system, and Verizon only serves an a communications conduit for the customer.

On August 20, the Recording Industry Association of America (RIAA) filed its motion and memorandum [19 pages in PDF] in U.S. District Court (DC) in a proceeding brought by the RIAA for the purpose of enforcing a subpoena of Verizon's Internet services subsidiary. The RIAA motion states that it seeks to enforce a subpoena issued on July 24, 2002, pursuant to the Digital Millenium Copyright Act (DMCA). It states that "Verizon has refused to comply."

17 U.S.C. § 512(h) 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."

Subsection 512(h)(5) 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."

Verizon argues that the subpoena is invalid and should not be enforced, because Section 512 applies only when the infringing material is stored on the equipment of the subpoenaed party, and because there is no case or controversy within the meaning of Article III of the Constitution.

Verizon states that "It is clear from RIAA's assertion, however, that Verizon did not store any of the challenged sound files on its system or network. Verizon thus was not involved with the subscriber's activities except, at most, as a passive conduit within the meaning of subsection 512(a)."

Verizon then argues that "The subpoena power set forth in subsection 512(h) of the DMCA does not apply when the service provider acts as a passive conduit. The statute strictly confines the subpoena power to circumstances where the assertedly infringing material is stored on the service provider's system or network."

Verizon continues that "RIAA is seeking to expand the subsection 512(h) subpoena power to reach all Internet users, not just those who store infringing material on a service provider's system or network. RIAA proposes a dazzlingly broad subpoena power that would allow any person, without filing a complaint, to invoke the coercive power of a federal court to force disclosure of the identity of any user of the Internet, based on a mere assertion in a form submitted to the court's clerk that the user is engaged in infringing activity."

Verizon further argues that "Such a broad ranging invocation of federal judicial authority, as a pure investigative tool outside of the context of a pending case, raises substantial questions as to whether it exceeds the power of an Article III court."

Verizon further argues that "Permitting forced disclosure of the identities of Internet users, without a ``case or controversy´´ in the form of a filed lawsuit, would pose a grave threat of widespread abuse of this Court's subpoena power based on flimsy assertions of copyright infringement -- including by marketers, pormographers, and others who could invoke the DMCA procedures under the unfettered subpoena authority posited by RIAA." (Word misspelled by TLJ to evade email blocking.)

Verizon also raises a First Amendment argument, which the amicus brief addresses in more detail.

On August 30 a collection of privacy groups, including the Electronic Privacy Information Center (EPIC), filed an amicus curiae brief that emphasizes the First Amendment right of anonymous speech.

The amici argue that "Not only was the statute never intended to reach a situation in which the allegedly infringing material resides on the user’s own computer rather than a computer owned or controlled by the ISP, but the application of the statute as RIAA urges highlights the constitutional infirmities of Section 512(h) itself. The statute provides that, upon an unsupported allegation of copyright infringement by an Internet user on his own computer, a clerk of a court, without any substantive review by the court itself, must issue a subpoena to the user's ISP for the identity of the user. Yet, under the Constitution, anonymous speech is protected. Thus, this case falls into the line of cases that have established safeguards for protecting the anonymity of Internet speakers who have not been shown to have engaged in any prohibited conduct."

The amici argue that the relevant subpoena provision of the statute is unconstitutional, or in the alternative, that the Court should infer procedural due process provisions, including "notice, an opportunity to object, and judicial review".

Verizon's brief was written William Iverson and others at the law firm of Covington and Burling. The amicus brief was written by Megan Gray and others. The proceeding is titled "In Re Verizon Internet Services, Inc.; Recording Industry Association of America v. Verizon Internet Services, Inc." It is D.C. No. 1:02MS00323. The RIAA's reply brief is due on Wednesday, September 4.