COURT GRILLS VERIZON ON ITS FIGHT AGAINST RIAA SUBPOENAS

Verizon is fighting RIAA subpoenas seeking identity of individuals on Verizon’s network who had participated in unauthorized use of copyrighted material. Some observers said they initially thought Verizon’s chances were slim but, said Public Knowledge Pres. Gigi Sohn, outcome now appeared to be “a toss-up.”

Oral argument before U.S. Appeals Court, D.C., was kicked off by pointed questions by Judge John Roberts about 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 point was legality of subpoena process. 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 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 “conduit” carrier, which didn’t store any user information on its network, it wasn’t subject to subpoena requirements of Digital Millennium Copyright Act (DMCA). After U.S. Dist. Court, D.C., supported RIAA’s right to subpoena identities, Verizon appealed.

Despite initial grilling of McBride, 3-judge panel moved on to indicate interest in several Verizon arguments, including: (1) Possible constitutional problems with DMCA language on revealing identities. Verizon had argued that statute placed courts in administrative agency position of issuing subpoenas unrelated to court cases. (2) Whether Congress had anticipated peer-to-peer networks when it fashioned DMCA language. However, although court indicated interest in constitutional questions raised by Verizon, Scott McIntosh of Justice Dept. appeared as intervenor to say govt. didn’t have concern about 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 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 hard drive of user’s personal computer, McBride argued. However, Roberts asked why Verizon couldn’t meet that requirement by just “terminating” subscriber. McBride said he didn’t think that would meet requirement: “There’s no such thing as a take- down notice in a conduit” situation. He said that was good example of why it appeared statute was intended to treat “conduit” service providers such as Verizon differently from providers that stored information, for example through hosting.

In response to argument that peer-to-peer networks didn’t exist when Congress passed DMCA, Roberts asked why court shouldn’t read statute as intending to bar future technologies such as peer-to-peer. “What is your client’s interest,” Roberts demanded of McBride. McBride responded that privacy was key concern. “You make a lot of money” by hosting 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 software had “noninfringing uses.”

RIAA attorney Donald Verrilli contended that “the only sensible reading” of 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 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 provider couldn’t disable access to infringing material, it could terminate subscriber from its network: “We believe disabling access and termination are the same thing” under statute. Verrilli said point of legislation was to enforce copyright and since service providers didn’t want responsibility for that, statute eased their role in return for their agreeing to compromise with those seeking enforcement.