News

Appeals Court Stops File-Sharing Subpoenas

(December 19, 2003) - A federal appeals court ruled today that the recording industry cannot compel Internet service providers to reveal the names of subscribers who are allegedly using file-sharing programs like KaZaA to exchange music online.

It was a setback for the Recording Industry Association of America, which has been using the "subpoena" provision of the Digital Millennium Copyright Act (the "DMCA") to make ISPs disclose the identities of thousands of customers, based only on the industry's "good faith" claim that they are violating copyright law. Verizon challenged the industry's use of the subpoena provision to force ISPs to identify subscribers for whom they merely transmit e-mail or provide an Internet connection, and do not actually host any content. A federal district judge agreed with the RIAA's broad use of the law, but the appeals court reversed.

The appeals court decision is highly technical, and avoids the constitutional issues that the court would have had to reach if it interpreted the DMCA broadly, as the RIAA urged. Verizon, along with public interest groups like the Electronic Frontier Foundation, argued that requiring ISPs to reveal the names of subscribers merely on the industry's say-so, without any proof that they are violating the law, and without even a requirement that a lawsuit be filed against them, would violate the First Amendment right "to speak and to associate anonymously."1

The nub of the case was the relationship between section 512(h) of the DMCA, which allows copyright owners to obtain subpoenas against ISPs from court clerks, and sections 512(a)-(d), the so-called safe harbor provisions. Section 512(c) covers "information residing on systems or networks," and relieves ISPs of copyright liability if they make "expeditious efforts" to remove allegedly infringing material, once they are put on notice of a claimed violation. Section 512(a), by contrast, covers situations where the ISP is not hosting material but simply transmitting it, or providing an Internet connection; here, the law gives ISPs freedom from liability and does not contain "notice and take down" procedures.

Because section 512(h) - the subpoena provision - specifically refers back to section 512(c), the appeals court agreed with Verizon that subpoenas cannot be obtained where the ISP is only transmitting and not actually hosting the allegedly illegal content. The court also found that section 512(h) requires copyright holders to provide a notice of claimed infringement, as described in section 512(c), and this they cannot do where the person they are after has not actually stored material on the ISP's servers.

Although the case was highly technical, Judge Douglas Ginsburg, who wrote the appeals court opinion, expressed impatience with the industry's arguments, describing them at one point as "border[ing] on the silly," and at another, as "a non-sequitur." But Judge Ginsberg was also "not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect these rights."2 He suggested that the remedy lies with Congress - presumably to expand the reach of the DMCA even further.

The Verizon decision provides some privacy and free-speech protection for file-sharers who might have a legitimate claim to "fair use" of copyrighted music,3 or who might become innocent victims of industry lawsuits or threats as a result of the DMCA's subpoena provision. But the court's invitation to Congress to broaden the law seems ominously to invite the very constitutional questions that it avoided by interpreting section 512(h) narrowly. And the court had nothing to say about the broader cultural crisis that the industry has created with its attempts to stamp out file-sharing.

For more on the Verizon case, file-sharing, and the DMCA generally, see "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.

NOTES

1. Recording Industry Association of America v. Verizon Internet Services, No. 03-7015 (D.C. Circ. Dec. 19, 2003), p. 3.

2. Id., pp. 11, 13, 15.

3. See "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.