Verizon Must Disclose Identity of Customer to RIAA


Verizon Must Disclose Identity of Customer To RIAA

In a case of first impression, a federal court has construed the Digital Millenium Copyright Act to require an Internet service provider to disclose the identity of a customer who allegedly engaged in copyright infringement. Recording Industry Association of America v. Verizon Internet Services, No. 02‑MS‑0323 (D.D.C. Jan. 21, 2003).

The Recording Industry Association of America sought the identity of a customer of Verizon Internet Services who is alleged to have downloaded more than 600 songs from the Internet in a single day.

The RIAA was able to identify the Internet protocol address, but not the identity of the user. In accordance with the subpoena power authorized by Section 512(h) of the DMCA, the RIAA served a subpoena on Verizon asking for the identity of the user.

The DMCA limits the liability of Internet service providers for acts of copyright infringement by their customers, so long as the ISP meets certain notification conditions to their customers.

Verizon refused to comply with the subpoena, asserting that the subpoena related to information transmitted over its network but not stored on it, so that if fell outside the scope of the subpoena power.

Verizon relied on the fact that the subpoena power under the DMCA is conditioned on notification under Section 512(c) of the law, and that provision is addressed to ‘material that resides on a system or network controlled or operated by or for a service provider. Since it merely transmitted information, it was not subject to the subpoena power.

The RIAA moved to enforce the subpoena in U.S. District Court for the District of Columbia. Judge John D. Bates sided with the RIAA.

He focused on two sections of the law: Section (h), the section that establishes subpoena power, and Section (k), which contains definitions.

Judge Bates observed that Section (h) repeatedly referenced “service providers” within its scope. Under Section (k), the term “service provider” has two separate meanings, as defined by the DMCA. One of the definitions narrowly defines “service provider” for purposes of one particular subsection; the

Second definition broadly defines the term for purposes of all other Sections, and defines it as “a provider of online services or network access, or the operator therefor.”

Based on his straightforward construction of the statutory language, Judge Bates concluded that Section (k) left no doubt that the subpoena power provided for in Section (h) applies to all services providers. By the plain text of the statute, it applied to entities such as Verizon, even if the only service they provide is Internet connectivity.

The court rejected Verizon’s “strained” reading of the law, saying that it was not supportable as a matter of policy. Verizon was unable to explain to the court why Congress would allow a copyright owner to obtain identifying information from a service provider storing the infringing material on its system, but not from a service provider transmitting the material over its system.

Judge Bates ruled that the RIAA was entitled to its subpoena and ordered Verizon to comply.

Cary Sherman, president of RIAA, commenting on the decision said: “We appreciate the court’s decision, which validates our interpretation of the law. The illegal distribution of music on the Internet is a serious issue for musicians, songwriters and other copyright owners, and the record companies have made great strides in addressing this problem by educating consumers and providing them with legitimate alternatives. Now that the court has ordered Verizon to live up to its obligation under the law, we look forward to contacting the account holder whose identity we were seeking so we can let them know that what they are doing is illegal.”

Attorney Greg Hess of Parr Waddoups Brown Gee & Loveless in Salt Lake City , who represents software companies and copyright owners, said the District Court’s decision properly applies Section 512(h) of the DMCA.

“It is likely to be followed by other courts, because it is a plain vanilla interpretation of the act,” he said.

Hess said he believes that “the broader application of the decision is that other copyright owners can use the DMCA to combat copyright infringement on the Internet; without this provision it would be nearly impossible to identify infringers.”