COURT HEARS ARGUMENT ON DMCA REACH WITH P2P USERS

Bates faulted Congress for ambiguities in DMCA, specifically Sec. 512, which permits copyright holders to subpoena ISPs. RIAA in July served Verizon with subpoena under Sec. 512(h) seeking customer identification. That section requires RIAA to follow 6 steps under Sec. 521(c), which refers specifically to content “that resides on a system or network controlled or operated by or for the service provider,” but Verizon said that fell under Sec. 512(a), as in this case it was only “passive conduit,” as attorney Eric Holder said, not storer of information. Donald Verrilli, representing RIAA, said it was clear that subpoena for customer information “applies to all, including those in Subsection A.” At one point, he also said it could be argued that “network” mentioned in Sec. 512(c) could be seen to extend all way to customer’s PC.

In its subpoena, RIAA asked Verizon to perform “takedown” of customer’s content, request normally used when ISP is hosting content (although Verrilli said some subpoenas had involved file transfer protocol [FTP] users, somewhat analogous to P2P). After arguments, RIAA Pres. Cary Sherman said his group actually was seeking customer information only so it could send warning letter to file sharer, but Verizon Assoc. Gen. Counsel Sarah Deutsch said its request for takedown suggested otherwise. To Bates, Verrilli pointed out that RIAA had no choice but to request not just customer information but takedown because takedown request was one of 6 conditions content owner must meet under Sec. 512(c). RIAA had to ask for takedown but “all we're trying to do is get the identification of an infringer,” Verrilli said. Holder said takedown when customer was storing content on PC meant cutting off Internet access entirely, which also would disable other features such as e-mail and would harm other users in household. As alternative, Holder said RIAA could file “John Doe” subpoena against unidentified user, then serve Verizon with 3rd-party notice requesting information. He said that process would provide Verizon with more legal protection.

Bates said responding to RIAA’s subpoena didn’t seem to place more of burden on Verizon than having to address John Doe complaint, and at first Holder agreed, only later insisting John Doe complaints would be less burdensome (Bates said that might be true, but only because legal expense of pursuing that route for content owner might mean ISP would be served with fewer subpoenas). In picking up on similar burdens on ISPs under each approach, Bates seized on one of content owners’ most popular arguments, and Verrilli told judge “you've thoroughly vetted out the burden side.” But Holder said John Doe placed less of burden on Internet as whole, argument Bates summed up as “some abstract benefit to society.” Bates also said John Doe approach would be “much more burdensome on the courts, on the judicial system.”

Holder insisted Congress wouldn’t seek to place same burden on ISP storing content as one merely providing access, while Verrilli said Congress never would have made distinctions on how information was stored in determining how subpoenas could be issued. Those arguments didn’t appear to hold much weight with Bates, however, as he kept insisting on evidence of congressional intent, which neither Verrilli or Holder could provide. Verrilli did produce one nugget of intent. He had argued that John Doe approach couldn’t have been supported by Congress because that involved lengthy court process of months with numerous obstacles that could be placed by ISPs. Verrilli quoted from page 51 of Senate report on DMCA that ISPs should respond to orders “quickly.” Bates said he would look into that language, but said it wasn’t entirely clear Senate was referring specifically to subpoenas.

Verizon isn’t challenging constitutionality of DMCA but has argued that if RIAA prevails, potential future use of such subpoenas by content owners could raise First Amendment concerns. Bates put Verrilli on defensive on that score, as latter had argued that if even one subpoena could be found not to threaten ISP user’s free speech rights, constitutional issues with process couldn’t be raised. Judge echoed Holder in saying that if enough cases raised “serious and grave doubts” on constitutionality that could be grounds for not siding with RIAA. Related to free speech issue was fact that RIAA was serving subpoena to combat activity it believed was illegal but that hadn’t been certified as such by legal entity, only alleged by content owner, something Bates addressed with Verrilli.

Bates engaged in active and dynamic discourse with Verrilli and Holder but seemed less enthralled with MPAA’s attorney, said Paul Gaffney of Williams & Connolly. MPAA is amicus filer in case, and Bates said up front he didn’t like amicus filers testifying in his court. But Verrilli insisted on giving Gaffney 10 min. of his time and Bates agreed. Verrilli was to speak for 20 min. but went to 25, and when Gaffney rose to speak Bates barked: “You have a couple of minutes.” Gaffney began by decrying rapid growth of online piracy, then extolled virtues of motion picture industry and benefits it brought to economy. Bates interrupted Gaffney: “I feel like I'm a member of Congress listening to someone argue in favor of legislation.” Gaffney apologized, but essentially stuck to same prepared remarks. In contrast to Verrilli and Holder, Bates at no point interrupted Gaffney with questions.