District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution

April 24, 2003. The U.S. District Court (DC) issued an order [3 pages in PDF] and opinion [58 pages in PDF] in RIAA v. Verizon, holding that the issuance of a subpoena by a Clerk of the District Court pursuant to 17 U.S.C. § 512(h) to obtain the identity of an anonymous peer to peer infringer from his ISP does not violate either the First Amendment of the Constitution, or the justiciability requirements of Article III. The District Court also denied Verizon's motion for stay pending appeal, but granted a 14 day stay, to enable Verizon to seek a stay from the Appeals Court.

This opinion addresses Verizon's constitutional objections. The District Court previously rejected Verizon's arguments regarding construction of § 512 of the Digital Millennium Copyright Act (DMCA). On January 21, 2003, the District Court issued its opinion, in which it held that copyright holders can obtain subpoenas pursuant to § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing copying systems. See also, TLJ story titled "District Court Rules DMCA Subpoenas Available for P2P Infringers", January 21, 2003.

In the present opinion, the District Court rejected two constitutional arguments advanced by Verizon -- first, that issuance of the subpoena violates the justiciability requirements of Article III by authorizing federal courts to issue binding judicial process outside a pending case or controversy, and second, that issuance of the subpoena 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 overbroad.

On April 18, the Department of Justice filed a brief in which it argued that the statute does not violate either the Article III based justiciability requirements of the Constitution, or the First Amendment's free speech clause. See also, story titled "DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter" in TLJ Daily E-Mail Alert No. 646, April 22, 2003.

Background. The Recording Industry Association of America (RIAA), represents music companies whose copyrights are being infringed by people using peer to peer file copying systems. The RIAA possesses only Internet Protocol (IP) number information on infringers. Verizon, which is the ISP for some users of these P2P systems, possesses information that would associate subscriber information with IP number information. That is, by obtaining Verizon's information, the RIAA, or its members, would be able to file complaints alleging infringement against the individual infringers. The RIAA cannot sue Verizon for infringement, because of the safe harbor provisions of the DMCA.

The RIAA has obtained subpoenas from the clerk of the court pursuant to § 512(h), and served them upon Verizon. Verizon has refused to comply, and moved to quash the subpoenas. The RIAA brought this action to enforce its subpoenas. See also, TLJ story titled "Verizon and Privacy Groups Oppose RIAA Subpoena", August 30, 2002.

The individual who is a customer of Verizon, and who is alleged by the RIAA to be an infringer, is not a party to this proceeding.

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.

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."

Article III. The District Court characterized the authorities cited by Verizon on the Article III argument as "cases from the eighteenth and nineteenth centuries". The Court concluded that "it is clear that the § 512(h) subpoena authorization does not represent an innovation that is inconsistent with the limited role of the judiciary as it has traditionally been understood in our constitutional regime."

The Court reasoned that "the issuance of a § 512(h) subpoena cannot properly be considered an act of ``the court.´´ Subsection (h)(4) provides that ``[i]f the notification [of claimed infringement] filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.´´ 17 U.S.C. § 512(h)(4) (emphasis added). Under this subsection, the clerk exercises no discretion; if the requirements are met, the subpoena must be issued. The clerk, in other words, executes a quintessentially ministerial duty." (Parentheses, brackets, and emphasis in original.)

The Court continued that "Stretching back to the days of Chief Justice Marshall, the Supreme Court has repeatedly distinguished between actions that are ministerial in nature and those that constitute an exercise of judicial, legislative, or discretionary executive power. ... Here, the fact that Congress has directed an employee of the judicial branch to carry out a specific non-discretionary function neither implicates Article III judicial power nor involves federal judges in an investigation of the sort properly relegated to one of the other branches. In a real-world sense, no Article III judge takes any action with respect to a § 512(h) subpoena until the copyright holder moves to enforce the subpoena or the service provider moves to quash it -- at which time there is a concrete controversy sufficient to confer jurisdiction under Article III of the Constitution."

The Court also concluded that § 512(h) is analogous to Rule 27(a), FRCP, which allows a federal court to authorize a person to perpetuate testimony by deposition before an action is filed under certain circumstances, and that this serves as "compelling precedent for judicial compulsion of information outside the context of a pending case or controversy."

It concluded, "§ 512(h) does not place the Article III branch in a role inconsistent with that accorded to it under the Constitution. To the extent that the power of the judiciary is even implicated by the issuance of a subpoena under § 512(h), which assigns only a ministerial function to the clerk of the court, there are abundant analogues both in the criminal and civil contexts for judicial action in the absence of a pending federal case or controversy, including the close parallel of Rule 27. And whatever authority is granted under § 512(h) presents neither a danger of encroachment nor some other threat to the institutional integrity and independence of the judiciary."

First Amendment. The District Court then concluded that "§ 512(h) does not offend the First Amendment." Verizon had argued that the First Amendment is violated because the subpoena pierces the anonymity of peer to peer infringers without providing sufficient procedural protections.

The Court wrote that "The Supreme Court has recognized a right of anonymity within the First Amendment" and that "An individual's anonymity may be important for encouraging the type of expression protected by the First Amendment".

But, the District Court added that "when the Supreme Court has held that the First Amendment protects anonymity, it has typically done so in cases involving core First Amendment expression", and the DMCA "does not directly impact core political speech, and thus may not warrant the type of ``exacting scrutiny´´ reserved for that context."

It added that "Section 512(h) deals strictly with copyright infringement. Verizon concedes, as it must, that there is no First Amendment defense to copyright violations."

However, the District Court nevertheless concluded that "for present purposes that there is some level of First Amendment protection that should be afforded to anonymous expression on the Internet, even though the degree of protection is minimal where alleged copyright infringement is the expression at issue." The District Court then explained that § 512(h) provides procedural safeguards sufficient to satisfy this minimal standard.

The Court wrote that "Section 512(h) merely allows a private copyright owner to obtain the identity of an alleged copyright infringer in order to protect constitutionally recognized rights in creative works; it does not even directly seek or restrain the underlying expression (the sharing of copyrighted material). Thus, the DMCA does not regulate protected expression or otherwise permit prior restraint of protected speech. It only requires production of the identity of one who has engaged in unprotected conduct -- sharing copyrighted material on the Internet." (Parentheses in original.)

It added that "The DMCA places no limits on protected activity; it governs unprotected copyright piracy, and § 512(h) reaches only the identity of the subscriber (already known to the service provider), not any underlying expression." (Parentheses in original.)

However, the District Court continued that even if further safeguards were required, "the DMCA includes sufficient procedures to prevent any substantial encroachment on the First Amendment rights of Internet users." That is, the statute requires that the person requesting the subpoena have a good faith belief that the use of copyrighted material is not authorized by the owner, and that he submit a sworn declaration. Moreover, the statute provides penalties for false representations. The Court concluded that "With all these protections, it is unlikely that § 512(h) will require disclosure, to any significant degree, of the identity of individuals engaged in protected anonymous speech, as opposed to those engaged in unprotected copyright infringement."

The District Court likewise rejected Verizon's argument that the statute is overbroad and therefore chills anonymous speech. The Court wrote that while it is "possible that a copyright owner could mistakenly pursue, and obtain, the identity of an anonymous Internet user who was not, in actuality, infringing copyrighted materials", Verizon "has not come forward with any evidence that in the five years since the DMCA was enacted, § 512(h) subpoenas have been used to identify anyone but Internet users engaging in copyright infringement."

The Court also addressed Verizon's argument that "cyberstalkers" could fraudulently obtain subpoenas to obtain information about people they meet in internet chat rooms. The Court concluded that the "requirements in the DMCA should prevent such speculation from ever becoming a reality", and that even if a subpoena were fraudulently obtained, the ISPs, which can seek motions to quash, and pursue damages and attorneys fees, would serve as another protection and deterrent.

The Court wrote this conclusion on the issue of overbreadth. "The Supreme Court has emphasized repeatedly that ``where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.´´ ... Any overbreadth resulting from § 512(h) that arguably chills First Amendment expression or association is neither ``real´´ nor ``substantial´´ in relation to the DMCA's  ``plainly legitimate sweep´´ of identifying copyright infringers. The extent of copyright infringement and piracy of intellectual property over the Internet, on the other hand, is well-recognized and ``has reached epidemic proportions.´´ ... The recording industry has suffered substantial losses due to Internet piracy Whatever marginal impact the DMCA subpoena authority may have on the expressive or anonymity rights of Internet users, then, is vastly outweighed by the extent of copyright infringement over the Internet through peer-to-peer file sharing, which is the context of the legitimate sweep of § 512(h)." (Citations omitted.)

Stay Rejected. Finally, the District Court rejected Verizon's motion to stay the enforcement of the subpoena pending outcome of an appeal. The District Court did, however, grant Verizon a 14 day stay. The Court reasoned that since "there is little chance that Verizon will succeed on the merits of its statutory and constitutional claims on appeal", it does not meet the requirements for issuance of a stay.

Reaction. John Thorne, SVP and Deputy General Counsel of Verizon, stated in a release that "Today's ruling goes far beyond the interests of large copyright monopolists -- such as RIAA -- in enforcing its copyrights. This decision exposes anyone who uses the Internet to potential predators, scam artists and crooks, including identity thieves and stalkers. We will continue to use every legal means available to protect our subscribers' privacy and will immediately seek a stay from the U.S. Court of Appeals. The Court of Appeals has already agreed to hear this important Internet privacy case on an expedited schedule."

Cary Sherman, President of the RIAA, stated in a release that "A federal district court has again affirmed that the law which provides copyright holders with a process to identify infringers is both Constitutional and appropriate. If users of pirate peer-to-peer sites don't want to be identified, they should not break the law by illegally distributing music. Today's decision makes clear that these individuals cannot rely on their ISPs to shield them from accountability."

The Center for Democracy and Technology (CDT) stated in its web site that the "CDT believes that the subpoena power in question raises serious privacy concerns for Internet users that must be dealt with in the political arena if they cannot be resolved in the courts."