Professional Documents
Culture Documents
09
)
rnRE: )
)
VERIZON llIorrERNET SERVICES. INC. )
SubpoenaEnforcement Matter )
)
)
RECORDINGINDUSTRY )
ASSOCIATIONOF AMERICA )
1330ConnecticutAvenue,N.W. Ste.300 )
Washington,D.C. 20036 )
) MiscellaneousAction
v. ) CaseNo.1 :O2MSOO323
)
VERIZON ~TERNET SERVICES,INC. )
1880CampusCommonsDrive )
Reston,VA 20191 )
its member companies,respectfully submits this motion to enforce the subpoenaissuedto Venzon
Internet Services,Inc. ("Verizon") on July 24~2002 by this Court under 17 U.S.C. § 512(h) of the
Digital Millemlium Copyright Act ("DMCA "). The subpoenaseekslimited infoxmation relating to
a computer connectedto the Verizon network that is a hub for significant music piracy. Verizon is
the only entity that can identify the infringer behind this computer.
unconditional duty on mtemet service providers such as Verlzon to provide "expeditiously," upon
AUG 21 2002 9:44 AM FR UERJZON 7033513670 TO 914154369993 P.10
copyrighted works. RIM complied with all of the requirementsof the statuteand obtaineda validly
holders to stop the piracy of their intellectual property, RIM further requests,by a separateMotion
to Expedite, that the Court expedite briefing and decide the issue as soon as possible.
LEGAL FRAMEWORK
This is a straightforward subpoenaenforcementaction. The Digital Millennium Copyright
Act of 1998 ("DMCA'j, Pub. L. No.l0S-304, 112 Stat. 2860, createsa special subpoenaauthority
that requires "service providers," such as Verizon, to respondto subpoenasissuedby United States
District Courts at the request of copyright owners seekinginformation sufficient to identify those
committing copyright infringement. See17 U.S.C. § S12(h). The tcnns of the statuteand its
requirements are clear and require little further analysis. Because,however, Verizon seeksto graft
conditions and limitations on the subpoenaauthority that do not appearin the text of Section 512(h)
and are inconsistentwith the purposeof the DMCA, additional backgroundon the statutory scheme
maybe of assistance
to the Court.
copyrighted works are disseminated,both lawfully and unlawfully. Virtually any cop)lTightedwork
cannow be put in a digital format) andthus canbe copied anddistnouted worldwide instantaneously.
S. Rep. No.1 05-190, at 8 (1998). Congresswas concernedthat, unlesscopyright owners have the
-2-
AUG 212002 9:44 AM FR VERIZON 7033513670 TO 914154369993 P.
Title n of the DMCA seeksto ensurethat cop.)Tightowners are able to protect their
intellectual property andto give them enhancedability to quickly and effectively deal with copyright
provision that allows copyright ownersto obtain infonnation quickly concerningthe identity of those
who are irifringing their copyrights on the Internet. Pursuantto 17 U.S.C. § S12(h), District Courts
are authorized, at the requestof copyright owners, to issue subpoenasto Internet or on-line service
providers ("service providers") where the copyright owner has a good faith belief that infringement
is occurring and needsadditional infonnanon to identify the alleged infringer. § 512(h). The logic
behindthis provision is obvious. On the mtemet.identities can be hidden. Often the service
provider through whom an individual engagingin infringement obtains network accessis the only
entity that can identifj the individual. Without this critical information, the copyright owner cannot
may requestthe clerk of any United Statesdistrict court to issuea subpoenato a serviceprovider for
a subpoena.under Section 512(h). the copyright owner or its agentmust supply a "swom declaration
to the effect that the purpose for which the subpoenais sought is to obtain the identity of an alleged
infringer and that such information will only be used for the purposeof protecting rights under this
title." § 512(h)(2)(C). The copyright owner must also file ocacopy of the notification describedin
-3-
AUG 212002 9:45 AM FR VERIZON 7033513670 TO 914154369993 P.12
DMCA that is referencedin several different subsectionsof the statute. It provides the elementsof
an effective notification to a service provider that itS network is being usedby others for cop}Tight
statute. The notice provisions require, among other things, that the copyright owner, or its agent,
identify the material being infringed, attestto its ownershipof the material, stateits good faith belief
that the complained-ofuse is unauthorized,and provide infonnation sufficient to allow the service
owner or its agent has establishedthe bona fides of its ownership and claim of infringement. See
§ 512(c)(2)(B)(i).
Upon receipt of the appropriatedocumentation,the DMCA requires that the clerk issue the
is properly executed.the clerk shall expeditiously issueand sign the proposedsubpoenaand return
service provider to disclose '4information sufficient to identify the alleged infringer of the material
§ S12(h)(3).
To achieveits PUIPOse,
Section5 12(h)subpoenasmust bearfruit quickly. A copyright holder
basno recourseagainsta copyriiht pirate if it cannotidentify and locatethe individual. A pirate who
-4-
AUG 212002 9:45 AM FR UERIZON 7033513670 TO 914154369993 P.lO
holder's intellectual property. Given the natureof the Internet, an individual user can causeliterally
the needfor expedition. Section 512(h) makesclear that the District Court clerk shall "expeditiously
issue" the requestedsubpoenaif all of the requirements are met and that, upon receipt, the service
provider "shall expeditiously disclose to the copyright owner or personauthorizedby the copyright
owner the information required by the subpoena,notWithstanding any other provision of law and
history of Section 512(h) describesissuanceof the subpoenaas a "ministerial" act, and emphasizes
at 51.
The Safe Harbor Provisions. In addition to the subpoenaprovisions under Section 5 12(h),
for service providers to limit their own liability for copyright infringement "for 'passive,' automatic
lEachsafeharborappliesnarrowlyto situationswhereserviceprovidersareengagingin
specificfunctions,suchasrouting or transmittingdigital networkcommunications (subsection
(a)); systemcaching(subsection(b); infomlation storing(subsection(c»; andprovidingsearch
tools for infonnationon the Intemet(subsection(d». S. Rep. 105-190at 19-20. Whenengaging
in oneof thosespecificfunctionsandcomplyingwith the preciserequirements of the relevant
subsection,the serviceprovidercannotbe held liable (asa resultof engagingin the specified
-5-
AUG 212002 9:45 AM FR UERIZON 7033513670 TO 914154369993 P.14
The safe harbor provisions do not alter the substantiveroles of copyright infringement or
contrary, the safeharbor provisions are designedto induce service providers to work together with
providers that they-.will not .be-heldfinancially responsiblefor infringement that occurs over their
networks,so long astheycomply with the specificconditionsof the safeharbors. In orderto fall
within several of the safe harbors, service providers must assistcopyright owners by, for example,
provider must also have in place a policy "for the tenninationin appropriatecircumstances
of
inftingers." 17U.S.C. § 5 12(i)(1XA). But the "DMCA's protection ofan innocent service provider
aware that a third party is using its systemto infringe." ALS Scan, 239 F .3d at 625.
-
The scopeof the various DMCA safeharborsis not at issue in this case only the subpoena
authorityin SectionS12(h)is relevant. The safe harbor provisions, however, work together with
the subpoenaauthorityin Section512(h) and all of the provisionsof the DMCA to promotethe
developmentof the Internet and to ensureeffective protection for intellectual property in the digital
function) for monetary relief for copyright infringement and can be subjectedto injunctive relief
only as specified in Section 5120).
2Serviceproviders must comply with their obligations under several of the safe harbors
any time they have actual knowledge that infringement is occurring, regardlessof whether they
have ~eived a formal notification from the cop.vnghtowner. See,e.g., § 512(d)(lXA).
-6-
AUG 212002 9:46 AM FR VERI20N 7033513670 TO 914154369993 P.1S
works or other violations of the copyrightlaws. That was not who Congresssoughtto protect;
On July 24, 2002, RIAA obtained a subpoena,issued by this Comt pursuant to 17 U.S.C.
copyright infringer operating from a specified IP (Internet Protocol) address. SeeJuly 24, 2002,
on!y information sufficient to identify the individual subscriberwho is trafficking in pirated material
notifying Verizon that lUAA believed a computer on V erizon' s internet servicewas distributing to
CO1.UlSel
ofRiAA, to Lauren K. Crowder, ContractsManager ofVerizon Internet Services,Inc., of
addressand attacheddocumentation including a list of the recordings available for download from
that computer. RIAA also provided a declarationindicating the basisfor the issuanceof the
-7-
AUG 2 2002 9:46 AM FR UERIZON 7033513670 TO 914154369993 p 6
Letter") (Attachment D). Verizon assertedthat because"[0]0 files of the Customerare hosted,
have failed to resolvethis matter, and RIAA hasinfonned Verizon that it would be filing this
motion.
AccordinglYt RIAA invokes this Court's jurisdiction pursuantto 17 U.S.C. § 512(h)(6) and
Fed. R. Civ. P. 45(c)(2)(B) to obtain an order to compel the productionof the subpoenaed
ARGUMENT
Section512(h)of the Digital Millennium CopyrightAct is crystalclear. Wherea service
(emphasisadded). The Subpoenaat issuein this casewas validly issuedby this Court, and RIAA
-8-
AUG 212992 9:46 AM FR UERIZON 7033513670 TO 914154369993 P.l?
Venzon hasnot raisedany issuewith respectto the form or validity of the Subpoenaor
alleged that compliance with the Subpoenais burdensome. Rather, Verizon has arguedthat it can
never be required to provide information in a casesuch as this because,in its view, the DMCA does
That claim ignoresthe plain languageof the statute.as well as its legislativehistory and
purpose, and would gut an important tool that Congressgave to copyright owners to protect their
things: its duty as a seIvice provider to remove or disable accessto infringing matmal upon notice
(which is required in order to maintain limitations on its own liability under the safe harbor
others. The latter obligation is the only one at issuehere. It is straightfo~ and entirely
shouldcompelVenzonto do exactlythat.
1352(D.C. Cir. 2002)(citati,onsomitted); Ullit~ Slaw v. Wilson.290 F.3d 347.352 (D.C. Cir.
2002). "Wh~ the languageis clear, that is the end of judicial inquiry iI1 all but the most
-9-
JG 21 2002 9:47 AM FR UERIZON 7033513670 TO 914154369993 P.18
omitted). The plain languageof the DMCA (reinforcedby its legislativehistory and purpose)
Section 512(h) of the DMCA provides that a copyright owner may ask any district court "to
broadly defmedas "a provider of online servicesor networkaccesstor the operatorof facilities
therefor." § 512(k)(1)(B); see alsoALS Scan,239 F.3d at 623 ("The Act defines a service provider
broadly.'); H. Rep. No.1 OS-551(fl) at S4(1998) (definition or"service provider" includes thosewho
'~rovide Internet access,e-mail," etc.). Section512(h) appliesto all "service providers" regardless
512(h).
-10-
AUG 212902 9:47 AM FR VERIZON 7033513670 TO 914154369993 P.lS
Under the DMCA, a copyright owner, or its agent, must provide three things in order for a
proper fonn, and "a sworn declarationto the effect that the purpose for which the subpoenais sought
infringing works that were being offered for download by Verizon's subscriberand the identification
of the specific location from which the alleged infringer was operating - anIP addressof a Verlzon
subscriber. From that.IP address,the alleged infringer is using accessobtained through Verlzon' s
provided tells Verizon exactly whereto find this computerand identifies preciselywhere the
comply with the subpoenain a matter of seconds. But unless it does so, RIAA memberswill have
~11.
AUG 212002 9:47 AM FR VERIZON 7033513670 TO 914154369993 P.20
.
requestedinfonnation is not optional. Under the DMCA, the serviceprovider "shall expeditiously
disclose to the copyright owner or personauthorizedby the copyright owner the infonnation required
by the subpoena.notwithstanding any other provision of law and regardless of whether the service
could not be more explicit. Thus, regardlessof whether Verizon could itselfbe liable for copyright
infringementor regardlessof whetherVerizon must take other stepsin order to maintain the
with the Subpoena. Moreover. pursuant to Rule 45(c)(2)(B) and Section 512(h)(6), this Court has
-12-
.
AUG 2 2002 9:47 AM FR UERIZOH 7033513670 TO 914154369993 P.21
In its letter to RIM, Verizon raisesa number of issuesthat it claimsjustify ignoring a validly
-
various safeharbor provisions in the DMCA, but thoseprovisions all of which relateto Verizon's
own liability for copyright infringement - have nothing to do with Verizon's obligation to respond
it qualifies for a safe harbor under Section 512(a),5it is entitled to ignore a subpoenaissuedunder
Section 512(h). Verizon Letter at 2. That c!aim finds no support in the text 0f the statuteand makes
defines the activitie$ orfunctions of service providers which may qualify such service providers for
potential safe harbof$from being held .'liable for monetaryrelief. Of, exceptas provided in
'RlAA takes issuewith Verizon's claim that it falls within the tcrms of the safe harbor
defined in Section S12(a). That issue,however, is for another day becauseit is wholly irrelevant
to Verizon's obligation to respond to a subpoenaissued under Section S12(b).
-13-
AUG 212992 9:48 AM FR VERIZON 7033513670 TO 914154369993 P.22
In contrasttSection S12(h) appliesto all serviceproviders. whether or not they fall within the
safe harbor provisions of subsection (a)-(d), and fCiardless of what functions the service provider
liabilitypl'Otection and the latter by giving copyright ownersthe ability to uncover information from
the safeharbors as restricting the scopeof the subpoenaprovision would make hashof the statutory
design.
here - the allegedinfringer maintainsfiles on his or her own computer.rather tlw1 on servers
owned and controlled by the service provider. and usesthe serviceprovidats network to distn"bute
the inftinging material, a subpoenaunder Section 512(h) can never issue. Verizon Letter at 2. That
argument- which seeksto transfonn the notice provisions ofsubsectiOD(c)(3XA) into a substantive
limitation that would evisceratethe subpoenaauthority createdunder Section 512(11)- has no basis
in the statutory text and is antithetical to the policies Congresssought to advancein the DMCA.
-14-
AUG 2 2002 9:48 AM FR VERIZON 7033513670 TO 914154369993 P.23
whether the infringing material that is being offered fur download resides on a computer or server
owned andoperatedby Verizon. SeeVerizon Letter at 2-3. But only Verizon knows what computer
and what subscriberis at the IP addressthat is offering unauthorizedmaterial fur download; indeed,
unique IP addressof the computer; it provided that information in its Notification Letter to Verizon.
Verizon's suggestionthat RIM should provide more specific infonnation ignoresthe fact that only
Verlzon is in possession
of the infomlationthat is soughtby the Subpoenaandthat it unilaterally
Section 5 12(h) does not limit subpoenasonly to situations where the allegedly infringing material
identification of an alleged infringer" and saysnothing about where the alleged infringing material
Section 512(h) was designedto permit "identification of allegedinfringers who areusersof a service
here.
contours of the safeharbors and any limitations on the subpoenaauthority are to be fouud in those
~15-
AUG 212002 9:48 AM FR UERIZON 7033513670 TO 914154369993 P.24
clear that strict compliance with the notification provisionswas not required; substantialcompliance
was sufficient to trigger all of dle setViceproviders' obligations under the DMCA. See
§ S12(c)(3)(A). CongTCSs
expected serviceproviders and copyright owners "will comply with the
functional requirementsof the notification provisions." H. Rep. No.1 OS-551(ll) at 56. So long as
infringing user or disabling accessto infringing material,the copyrightowner bas fulfilled its
obligations./d.
Finally t the two snippetsof statutorylanguagethat Verizon cites for its claim do not remotely
That language,quoted and cmphasizedin Verlzon's letter, does not appearin subsection
the terDlSof one of the safeharbor provisions. Thus unmasked,Verizon' s argumentis truly bizane
providers - they must respondto valid subpoenasan~ if they wish to Im13in within the safe harbor
-16-
AUG 212002 9:49 AM FR VERIZON 7033513670 TO 914154369993 P.25
to the notification").
Verizon also seeksto dressup the samepoint in different clothing by claiming that, because
..
VenzonLetterat 3.
As an initial matter, Verlzon's claim that it cannot locate the material rings hollow.
of."the material that is claimed to be infringing or to be the subject of infringing activitY and that is
-17-
AUG 212002 9:49 AM FR VERIZON 7933513679 TO 914154369993 P.26
of notice that are required for three of the safeharbors- subsections(b), (c). and (d), as well as the
Sl2(h). Under subsection(d), a copyright owner may give notice pursuant to s.ubsection(c)(3)(A)
infringing material, whether or not that material is still being stored by the provider. See
S12(h» if they were not a freestandingprovision defining the elementsof effective notice, applying
with equal force to situations where the seIViceprovider was not storing infringing files (as alleged
necessary
by Vcrizon).6
-18-
AUG 212992 9:49 AM FR VERIZON 7933513670 TO 914154369993 P.27
CONCLUSION
For the foregoing reasons.RIAA respectfully ~uests that the Court enteranorder requiring
Respectfully 8ubmitted,
BY:-+~ ~B ~.f4A-;,;"p
Of Counsel: DonaldB. Vem11i.Jr., D.C. BarNo. 420434
ThomasJ. Perrelli,D.C. BarNo. 438929
MatthewJ- Oppenheim CynthiaJ. Robertson,D.C. BarNo. 472981
StanleyPierre-Louis JENNER& BLOCK, u..c
RECORDINGINDUSTRY 601Thirteenth StI'cet,NW, Suite 1200
ASSOCIAnON OF AMERICA Washington,D.C. 20005
1330 Connecticut Ave., N. W. Phone: (202) 639-6000
Ste.300 Fax: (202)639-6066
Washington.
D.C. 20036
Attorneysfor the RecordinghldustryAssociationof
America
Dated:August20, 2002
-19-