COURT GRILLS VERIZON ON ITS FIGHT AGAINST RIAA SUBPOENAS
After tough questioning by a panel of federal judges Tues., it was unclear whether Verizon would win or lose its battle to avoid identifying computer users suspected of copyright infringement. Verizon is fighting RIAA subpoenas seeking the identity of individuals on Verizon’s network who had participated in the unauthorized use of copyrighted material. Some observers said they initially thought Verizon’s chances were slim but, said Public Knowledge Pres. Gigi Sohn, the outcome now appeared to be “a toss-up.”
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The oral argument before the U.S. Appeals Court, D.C., was kicked off by pointed questions by Judge John Roberts about the illegal nature of unauthorized use of copyrighted material. Addressing Verizon attorney Andrew McBride, Roberts said: “This case is about 600 copyrighted works” being made available by individuals without authorization. McBride said the point was the legality of the subpoena process. However, Roberts interrupted, asking “is there any legitimate purpose” for individuals making 600 copyrighted works available via file sharing networks? McBride said he didn’t know but Verizon’s point was that the statute wasn’t intended for companies such as Verizon that didn’t have access to users’ information.
Verizon’s argument centered on its view that as a “conduit” carrier, which didn’t store any user information on its network, it wasn’t subject to the subpoena requirements of the Digital Millennium Copyright Act (DMCA). After the U.S. Dist. Court, D.C., supported RIAA’s right to subpoena the identities, Verizon appealed.
Despite the initial grilling of McBride, the 3-member panel moved on to indicate interest in several Verizon arguments, including: (1) Possible constitutional problems with the DMCA language on revealing identities. Verizon had argued that the statute placed courts in an administrative agency position of issuing subpoenas unrelated to court cases. (2) Whether Congress had anticipated peer-to-peer networks when it fashioned the DMCA language. However, although the court indicated interest in the constitutional questions raised by Verizon, Scott McIntosh of the Justice Dept. appeared as an intervenor to say the U.S. govt. didn’t have a concern about the statute’s constitutionality. Judge Stephen Williams, in one of several references to that issue, asked McIntosh whether it “was absolutely clear the District Court had authority” to act on quashing subpoenas. “I believe it did,” McIntosh said.
Judges also questioned McBride about whether Verizon was able to meet a statutory requirement that it “remove” offending material. Since Verizon doesn’t store any user information on its network, there’s no way to remove material short of taking it off the hard drive of a user’s personal computer, McBride argued. However, Roberts asked why Verizon couldn’t meet that requirement by just “terminating” the subscriber. McBride said he didn’t think that would meet the requirement: “There’s no such thing as a take-down notice in a conduit” situation. He said that was a good example of why it appeared the statute was intended to treat “conduit” service providers such as Verizon differently from providers who stored information, for example through hosting.
In response to arguments that peer-to-peer networks didn’t exist when Congress passed the DMCA, Roberts asked why the court shouldn’t read the statute as intending to bar future technologies such as peer-to-peer. “What is your client’s interest,” Roberts demanded of McBride. McBride responded privacy was the key concern. “You make a lot of money” by hosting the user services in question, Roberts said. “That’s a canard” because Verizon hosts only legitimate Web sites, McBride said. Roberts said he believed “the vast amount of peer-to-peer [usage] is actually piracy.” McBride said he disagreed and thought the software had “noninfringing uses.”
RIAA attorney Donald Verrilli contended that “the only sensible reading” of the statute was that all service providers would be treated similarly. “The only entity who knows the identify of the infringing user is the service provider,” he said. Judge Williams said “that makes sense as a policy matter but I'm not sure it helps us very much” in reviewing Congress’s intent. Verrilli said Verizon’s position was “a significant over-reading” of the statute’s definition of service provider obligations. “Even if a service provider is not able to take down [infringing material] it still is obligated to respond to a subpoena,” Verrilli said. He said if a provider couldn’t disable access to infringing material, it could terminate the subscriber from its network: “We believe disabling access and termination are the same thing” under the statute. Verrilli said the point of the legislation was to enforce copyright and since service providers didn’t want responsibility for that, the statute eased their role in return for their agreeing to compromise with those seeking enforcement.
All of the judges appeared very engaged in the Internet- related issue, with Williams, for example, noting at one point he had “Googled” on one of the issues that arose in the case. The 3rd judge on the panel was Chief Judge Douglas Ginsburg. A Verizon official said she was pleased at how knowledgeable the judges were.