Advanced Copyright Issues on the Internet - Fenwick & West LLP

subpoena power identified by amici curiae, noting that Verizon itself had not directly assertedthat the subpoena power in Section 512(h) was unconstitutional and that the issues raised by theamici curiae had not been fully briefed by the RIAA. 1043 In a subsequent ruling, the districtcourt issued a more elaborated opinion on a number of constitutional challenges to the subpoenapower in Section 512(h) raised by Verizon and amici curiae and again rejected thosechallenges. 1044On appeal, the D.C. Circuit reversed. 1045 The appellate court held, based on both theterms of Section 512(h) and its overall structure that a subpoena may be issued only to an ISPengaged in storing on its servers, or linking to, material that is infringing or the subject ofinfringing activity, and not to an ISP acting only as a conduit for data transferred between twoInternet users. With respect to the language of Section 512(h) itself, the court noted that Section512(h)(4) makes satisfaction of the notification requirement of Section 512(c)(3)(A) a conditionprecedent to issuance of a subpoena, which notification requirement must identify and provideinformation sufficient to locate infringing material that is to be removed or access to which is tobe disabled. The court held that an ISP that is not storing the allegedly infringing material on itsservers cannot “remove” or “disable access to” the infringing material no matter whatinformation the copyright owner may provide. 1046The RIAA contended that an ISP can “disable access” to infringing material, even whenit is providing only conduit functions, by terminating the offending subscriber’s Internet account.The court rejected this argument, noting that the DMCA, in Sections 512(j)(1)(A)(i) and512(j)(1)(A)(ii), sets up distinct statutory remedies in the form of injunctions against providingaccess to infringing material and injunctions against providing access to a subscriber who isengaged in infringing activity. 1047 “These distinct statutory remedies establish that terminating asubscriber’s account is not the same as removing or disabling access by others to the infringingmaterial resident on the subscriber’s computer.” 1048 The court further noted that the RIAA’snotification had identified absolutely no material Verizon could remove or access to which itcould disable, which suggested that Section 512(c)(3)(A) “concerns means of infringement otherthan P2P file sharing.” 1049the safe harbor, per the provisions of Section 512(i). This is only a possible implication, however, and the pointof the court’s passage is that Section 512(h) is focused on identification of the infringer, not removal ordisabling of access to infringing material.1043 Id. at 41-44.1044 In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244, 257-68 (D.D.C. 2003). The court also rejectedVerizon’s argument that Section 512(h) violates Art. III of the Constitution because it authorizes federal courtsto issue binding process in the absence of a pending case or controversy. Id. at 248-57.1045 Recording Industry Ass’n of Am. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003), cert.denied, 2004 U.S. LEXIS 6700 (2004).1046 Id. at 1235.1047 Id.1048 Id.1049 Id. at 1236.- 240 -