Advanced Copyright Issues on the Internet - Fenwick & West LLP

copyrighted songs through peer-to-peer software provided by Kazaa. Along with the subpoena,RIAA provided Verizon with a list of more than 600 files allegedly downloaded by the user onone day. The subpoena included the user’s IP address and the time and date when the songswere downloaded, and a declaration, under penalty of perjury, that the information was sought ingood faith and would only be used in connection with protecting the rights of RIAAmembers. 1039Verizon refused to comply with the subpoena, arguing that, because Section 512(h)requires a notice under Section 512(c)(3)(A) to accompany the subpoena application, thesubpoena power applies only if the infringing material is stored or controlled on the ServiceProvider’s system or network under subsection (c). Verizon further argued that, because it onlyprovided the alleged infringer with an Internet connection, it fell under subsection (a) of Section512 and was thus outside the subpoena authority of Section 512(h). 1040 The RIAA sought toenforce the subpoena against Verizon in court.The district court rejected Verizon’s arguments and ruled that the subpoena power ofSection 512(h) applies to all service providers within the scope of the DMCA, not just to thoseservice providers storing information on a system or network at the direction of a user. Thecourt held that the plain language of Section 512(h) compelled this result, because it employs theterm “service provider” repeatedly, and Section 512(k) provides two definitions of the term“service provider” – one directed to service providers falling under Section 512(a) and anotherdirected to service providers falling under Sections 512(b) – (d). 1041 The court rejectedVerizon’s contention that it should infer that the subpoena authority applies only to subsection(c) in view of the reference in subsection (h)(2)(A) to the notification requirement of subsection(c)(3)(A). The court noted that “the notification provision in subsection (c) is also referencedelsewhere in the DMCA, including in subsections (b)(2)(E) and (d)(3). The latter referencesconfirm the expectation that notifications like that described in subsection (c)(3) will at times beneeded in settings under subsections (b) and (d), and hence are not confined to subsection (c)settings.” 1042 The court also rejected a number of constitutional challenges to the Section 512(h)1039 Id. at 28.1040 Id. at 29.1041 Id. at 31.1042 Id. at 32-33. Verizon also relied on the fact that under subsection (c)(3)(A)(iii) a copyright owner must identifythe infringing material “that is to be removed or access to which is to be disabled.” Verizon argued that inorder to remove or disable access to the material, the material must be stored on its system, thereby indicatingthat Congress intended Section 512(h) to apply only to those service providers who store infringing material ontheir systems. The court rejected this argument. “[A] subpoena issued pursuant to subsection (h) is used toidentify the infringer, not to force the service provider to remove material or disable access to it. Therequirement for the notification is simply that it identify the infringing material to be removed, not that removalbe effectuated. In addition, a copyright owner can meet the requirement under subsection (c)(3)(A)(iii) if it candisable access to material. Here, Verizon certainly can disable access to the material by terminating the accountaltogether.” Id. at 33 n.5. Since Verizon was a Section 512(a) service provider, and the requirement insubsection (c) to remove or disable access to infringing material stored on the service provider’s system is notapplicable to subsection (a), it is unclear what the court’s reference to Verizon’s ability to disable access tomaterial by terminating accounts was intended to mean. Perhaps that service providers who are subject to theSection 512(a) safe harbor must nevertheless terminate the accounts of repeat infringers in order to qualify for- 239 -