Court Hears DMCA Subpoena Power Appeal

WASHINGTON — The three-panel U.S. Court of Appeals for the District of Columbia peppered attorneys for both the Recording Industry Association of America (RIAA) and Verizon with questions about the subpoena powers of the Digital Millennium Copyright Act (DMCA) Tuesday morning.

Verizon is appealing a January ruling requiring the telecom giant to comply with a subpoena request by the RIAA to reveal the identities of customers who allegedly infringed copyrights using peer-to-peer (P2P) file-sharing networks.

Judge John Roberts interrupted Verizon attorney Andrew McBride just minutes into his presentation to ask, “Isn’t the vast majority of P2P activity the exchange of copyrighted materials? Is there any legitimate purpose for making 627 copyrighted materials available for copy? What is Verizon’s interest in this case?”

McBride replied that P2P networks can be used for many legitimate purposes other than illegal downloading and that Verizon’s interest was protecting the privacy of its customers.

Roberts later stated that “you (Verizon) make a lot of money off piracy,” a charge McBride labeled as a “canard,” telling the court Verizon only makes money off legitimate download services it is affiliated with.

Roberts was equally quick to interrupt RIAA attorney Donald Verrilli, Jr., wanting to know how storing music files on a computer hard drive that might be available to others is actually copyright infringement.

“Isn’t that like me leaving the door of library open and someone comes in and copies a book. That doesn’t make me an infringer,” Roberts said.

Other issues raised by the judges included the RIAA’s definition of computer hard drives connected to a network as “online sites” and the actual jurisdiction of a court hearing an argument about a “controversy and not an actual case.”

The subpoena power in question is issued through a provision of the 1998 DMCA that allows copyright holders to issue subpoenas that have not been reviewed by a judge and requires no notice to, or opportunity to be heard by, the alleged infringer.

Last year, the RIAA issued the first DMCA subpoenas to Verizon, seeking the names of several alleged infringers.

Verizon originally argued that the DMCA subpoena only applied in cases where an Internet service provider (ISP) stored the copyrighted material on its servers. Because people using P2P networks store the material on their own hard drives, Verizon said it was exempt from the DMCA subpoena.

Since then, Verizon has expanded its case to the actual constitutionality of the DMCA subpoena, privacy rights violations, the potential dangers of the subpoena being misused by non-copyright holders and even the future growth on the Internet.

The RIAA contends the DMCA subpoena is perfectly legal and was agreed to by Internet service proviers (ISPs) during the 1998 negotiations over the DMCA. One of the central issues then was the liability of ISPs for the possible copyright infringements of their customers.

The DMCA gives ISPs liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers’ systems, including complying with an expedited subpoena process for copyright owners who want to pursue legal action against infringers. Neither side ever anticipated the development and explosive growth of peer-to-peer networks.

In January, a U.S. District Court ruled in the RIAA’s favor and ordered Verizon to turn over the names. Verizon then sought a stay in order to protect the names while the company appeals the decision. In April, U.S. District Judge John Bates rejected Verizon’s stay request but granted a temporary stay until the Court of Appeals could decide the matter, which ruled in June that Verizon had to turn over the names.

Since then, the RIAA has issued more 1,500 subpoenas. Those subpoenas led to 261 civil lawsuits being filed by the RIAA last week against alleged copyright infringers.

The appeals court now has to decide if Bates ruled correctly. Both the RIAA and Verizon have said they are willing to take the case all the way to the Supreme Court.

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