Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc.Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc.
Case Information
*1 Before: G INSBURG , Chief Judge , and R OBERTS , Circuit Judge, and W ILLIAMS , Senior Circuit Judge .
O R D E R
It is ORDERED by the court, sua sponte, that the opinion filed by the court on December 19, 2003, be amended as follows:
Page 16, line 8: substitute ‘‘July 24’’ in place of ‘‘February 4’’.
Page 16, line 9: substitute ‘‘February 4’’ in place of ‘‘July 24’’.
Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: Michael McGrail Deputy Clerk *3 Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2003 Decided December 19, 2003
No. 03-7015
R ECORDING I NDUSTRY A SSOCIATION OF A MERICA, I NC., A PPELLEE v.
V ERIZON I NTERNET S ERVICES, I NC.,
A PPELLANT Consolidated with 03–7053 Appeals from the United States District Court for the District of Columbia (No. 02ms00323) (No. 03ms00040) Andrew G. McBride argued the cause for appellant. With him on the briefs were John Thorne , Bruce G. Joseph , and Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Dineen P. Wasylik . Deanne E. Maynard entered an appear- ance.
Megan E. Gray, Lawrence S. Robbins, Alan Untereiner, Christopher A. Hansen, Arthur B. Spitzer, and Cindy Cohn were on the brief for amici curiae Alliance for Public Tech- nology, et al., in support of appellant.
Donald B. Verrilli, Jr. argued the cause for appellee Recording Industry Association of America, Inc. With him on the brief were Thomas J. Perrelli and Matthew J. Oppen- heim.
Scott R. McIntosh , Attorney, U.S. Departmеnt of Justice, argued the cause for intervenor-appellee United States. With him on the brief were Roscoe C. Howard, Jr. , U.S. Attorney, and Douglas N. Letter , Attorney, U.S. Department of Justice.
Paul B. Gaffney, Thomas G. Hentoff, Eric H. Smith, Patricia Polach, Ann Chaitovitz, Allan R. Adler, Joseph J. DiMona, Robert S. Giolito , and Chun T. Wright were on the brief for amici curiae Motion Picture Association of America, et al., in support of appellee Recording Industry Association of America. David E. Kendall entered an appearance.
Paul Alan Levy, Alan B. Morrison, and Allison M. Zieve were on the brief for amicus curiae Public Citizen.
Before: G INSBURG , Chief Judge , and R OBERTS , Circuit Judge, and W ILLIAMS , Senior Circuit Judge .
Opinion for the Court filed by Chief Judge G INSBURG .
G INSBURG ,
Chief Judge
: This case concerns the Recording
Industry Association of America’s use of the subpoena provi-
sion of the Digital Millennium Copyright Act,
The district court rejected Verizon’s statutory and constitu-
tional challenges to
I. Background
Individuals with a personal computer and access to the
internet began to offer digital copies of recordings for down-
load by other users, an activity known as file sharing, in the
late 1990’s using a program called Napster. Although re-
cording companies and music publishers successfully obtained
an injunction against Napster’s facilitating the sharing of files
containing copyrighted recordings,
see A&M Records, Inc. v.
Napster, Inc.
, 284 F.3d 1091 (9th Cir. 2002);
A&M Records,
Inc. v. Napster, Inc.
,
share digital .mp3 files of copyrighted recordings using P2P computer programs such as KaZaA, Morpheus, Grokster, and eDonkey. See John Borland, File Swapping Shifts Up a Gear (May 27, 2003), available at http://news.com.com/2100– 1026–1009742.html, (last visited December 2, 2003). Unlike Napster, which relied upon a centralized communication ar- chitecture to identify the .mp3 files available for download, the current generation of P2P file sharing programs allow an internet user to search directly the .mp3 file libraries of other users; no web site is involved. See Douglas Lichtman & William Landes, Indirect Liability for Copyright Infringe- ment: An Economic Perspective , 16 H ARV. J. L AW & T ECH. 395, 403, 408–09 (2003). To date, owners of copyrights have not been able to stop the use of these decentralized programs. See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd. , 259 F. Supp. 2d 1029 (C.D. Cal. 2003) (holding Grokster not contributorily liable for copyright infringement by users of its P2P file sharing program).
The RIAA now has begun to direct its anti-infringement efforts against individual users of P2P file sharing programs. In order to pursuе apparent infringers the RIAA needs to be able to identify the individuals who are sharing and trading files using P2P programs. The RIAA can readily obtain the screen name of an individual user, and using the Internet Protocol (IP) address associated with that screen name, can trace the user to his ISP. Only the ISP, however, can link the IP address used to access a P2P program with the name and address of a person – the ISP’s customer – who can then be contacted or, if need be, sued by the RIAA.
The RIAA has used the subpoena provisions of
A copyright owner (or its agent, such as the RIAA) must
file three items along with its request that the Clerk of a
district court issue a subpoena: (1) a ‘‘notification of claimed
infringement’’ identifying the copyrighted work(s) claimed to
have been infringed and the infringing material or activity,
and providing information reasonably sufficient for the ISP to
locate the material, all as further specified in
On July 24, 2002 the RIAA served Verizon with a subpoena
issued pursuant to
When Verizon refused to disclose the name of its subscrib-
er, the RIAA filed a motion to compel production pursuant to
The RIAA then obtained another
Verizon appealed both orders to this Court and we consoli-
dated the two cases. As it did before the district court, the
RIAA defends both the applicability of
II. Analysis
The court ordinarily reviеws a district court’s grant of a
motion to compel or denial of a motion to quash for abuse of
discretion.
See, e.g., In re Sealed Case
, 121 F.3d 729, 740
(D.C. Cir. 1997). Here, however, Verizon contends the orders
of the district court were based upon errors of law, specifical-
ly errors regarding the meaning of
The issue is whether
A. Subsection 512(h) by its Terms
We begin our analysis, as always, with the text of the
statutе.
See Barnhart v. Sigmon Coal Co.
, 534 U.S. 438, 450
(2002). Verizon’s statutory arguments address the meaning
of and interaction between
Notably present in
Verizon argues that
(i) A physical or eleсtronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
particular, Verizon maintains the two subpoenas obtained by
the RIAA fail to meet the requirements of
Infringing material obtained or distributed via P2P file sharing is located in the computer (or in an off-line storage (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infring- ing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The RIAA contends an ISP can indeed ‘‘disable access’’ to
infringing material by terminating the offending subscriber’s
internet account. This argument is undone by the terms of
the Act, however. As Verizon notes, the Congress considered
disabling an individual’s access to infringing material and
disabling access to the internet to be different remedies for
the protection of copyright owners, the former blocking ac-
cess to the infringing material on the offender’s computer and
the latter more broadly blocking the offender’s access to the
internet (at least via his chosen ISP).
Compare
The RIAA points out that even if, with respect to an ISP
functioning as a conduit for user-directed communications, a
copyright owner cannot satisfy
the requirement of
Nothing in the Act itself says how we should determine
whether a notification ‘‘includes substantially’’ all the required
information; both the Senate and House Reports, however,
state the term means only that ‘‘technical errors TTT such as
misspelling a name’’ or ‘‘supplying an outdated area code’’ will
not render ineffective an otherwise complete
Finally, the RIAA argues the definition of ‘‘[internet] ser-
vice provider’’ in
This argument borders upon the silly. The details of this
argument need not burden the Federal Reporter, for the
specific provisions of
In sum, we agree with Verizon that
B. Structure
Verizon also argues the subpoena provision,
As the RIAA points out in response, however, because
Although the RIAA’s conclusion is a non-sequitur with
respect to
The storage activities described in the safe harbors of
C. Legislative History
In support of its claim that
We need not, however, resort to investigating what the
105th Congress may have known because the text of
In any event, not only is the statute clear (albeit complex),
the legislative history of the DMCA betrays no awareness
whatsoever that internet users might be able directly to
exchange files containing copyrighted works. That is not
surprising; P2P software was ‘‘not even a glimmer in any-
one’s eye when the DMCA was enacted.’’
In re Verizon I
,
240 F. Supp. 2d at 38. Furthermore, such testimony as was
available to the Congress prior to passage of the DMCA
concerned ‘‘hackers’’ who established unauthorized FTP or
BBS sites on the servers of ISPs,
see Balance of Responsibil-
ities on the Internet and the Online Copyright Liability
Limitation Act: Hearing on H.R. 2180 Before the House
Subcomm. on Courts and Intellectual Property, Comm. on
the Judiciary
, 105th Cong. (1997) (statement of Ken Wasch,
President, Software Publishers Ass’n); rogue ISPs that рost-
ed FTP sites on their servers, thereby making files of copy-
righted musical works available for download,
see
Complaint,
Geffen Records, Inc. v. Arizona Bizness Network
, No. CIV.
98–0794, at ¶ 1 (D. Ariz. May 5, 1998)
available at
http:
//www.riaa.com/news/newsletter/pdf/geffencomplaint.pdf, (last
visited December 2, 2003); and BBS subscribers using dial-up
technology to connect to a BBS hosted by an ISP. The
Congress had no reason to foresee the application of
D. Purpose of the DMCA
Finally, the RIAA argues Verizon’s interpretation of the
statute ‘‘would defeat the core objectives’’ of the Act. More
specifically, according to the RIAA there is no policy justifica-
tion for limiting the reach of
We are not unsympathetic either to the RIAA’s concern
regarding the widespread infringement of its members’ copy-
rights, or to the need for legal tools to protect those rights.
It is not the province of the courts, however, to rewrite the
DMCA in order to make it fit a new and unforseen internet
architecture, no matter how damaging that development has
been to the music industry or threatens being to the motion
picture and software industries. The plight of copyright
holders must be addressed in the first instance by the Con-
gress; only the ‘‘Congress has the constitutional authority
and the institutional ability to accommodate fully the varied
permutations of competing interests that are inevitably impli-
cated by such new technology.’’
See Sony Corp. v. Universal
City Studios, Inc.
,
The stakes are large for the music, motion picture, and software industries and their role in fostering technological innovation and our popular culture. It is not surprising, therefore, that even as this case was being argued, commit- tees of the Congress were considering how best to deal with the threat to copyrights posed by P2P file sharing schemes. See, e.g., Privacy & Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Tech- nology on the Entertainment Industry: Hearing Before the
16
Senate Comm. On Governmental Affairs , 108th Congress (Sept. 30, 2003); Pornography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks: Hearing Before the Senate Comm. on the Judiciary , 108th Congress (Sept. 9, 2003).
III. Conclusion
For the foregoing reasons, we remand this case to the district court to vacate its order enforcing the July 2 4 subpoena and to grant Verizon’s motion to quash the February subpoena.
So ordered.