'Re: [DMCA_Discuss] D.C. Court Of Appeals Holds That Digital'

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List:       dmca-discuss
Subject:    Re: [DMCA_Discuss] D.C. Court Of Appeals Holds That Digital
From:       "Dr. John Raymond Baker" <drjohnbaker () earthlink ! net>
Date:       2004-05-28 15:24:56
Message-ID: 003601c444c7$f21a5850$6401a8c0 () URTRESPASSING
[Download RAW message or body]

Vladimir :

Isn't this old news?

John
----- Original Message ----- 
From: "Vladimir Katalov" <vkatalov@elcomsoft.com>
To: <dmca_discuss@lists.microshaft.org>
Sent: Friday, May 28, 2004 4:45 AM
Subject: [DMCA_Discuss] D.C. Court Of Appeals Holds That Digital Millennium
Copyright ActDoes Not Require Disclosure of Subscriber Information

> D.C. Court Of Appeals Holds That Digital Millennium Copyright Act Does Not
Require Disclosure of Subscriber Information
> 27 May 2004
> Article by Jennifer Elgin
>
> http://www.mondaq.com/i_article.asp_Q_articleid_E_26315
>
> The U.S. Court of Appeals for the District of Columbia Circuit has
> held that the Digital Millennium Copyright Act ("DMCA") did not
> authorize the Recording Industry Association of America ("RIAA") to
> obtain subpoenas compelling Verizon and other Internet service
> providers ("ISPs") to disclose the names and other information about
> subscribers alleged to have violated copyright laws by illegally
> downloading over 600 songs in a single day from the internet using a
> peer-to-peer file sharing network. Recording Industry Association Of
> America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.
> Cir. 2003).
>
> The District Court Ordered Compliance With The Subpoena.
>
> Under subsection (a) of Section 512 of the DMCA, a service provider is
> not liable for "infringement of copyright by reason of the provider's
> transmitting, routing, or providing [Internet] connections for,
> material through a system or network controlled or operated by or for
> the service provider, or by reason of the intermediate and transient
> storage of that material in the course of such transmitting, routing,
> or providing connections," 17 U.S.C. § 512(a). In addition, subsection
> (c) provides that: "A service provider shall not be liable for
> infringement of copyright by reason of the storage at the direction of
> a user of material that resides on a system or network controlled or
> operated by or for the service provider. Id. § 512(c)(1). Only
> subsection (c) spells out certain requirements to be met by copyright
> owners for effective notification of copyright infringement under this
> subsection – there is no equivalent provision in subsection (a).
>
> The DMCA contains a broad subpoena power, 17 U.S.C. § 512(h). A
> copyright owner may obtain and serve a subpoena on a service provider
> seeking the identity of a customer alleged to be infringing the
> owner's copyright. The subpoena must contain "a copy of a notification
> described in subsection (c)(3)(A)," and a sworn declaration ensuring
> that the subpoena is solely to obtain the identity of the alleged
> infringer, which information will be used only to protect rights to
> the copyright." Id. §512(h)(2).
>
> The RIAA served subpoenas on Verizon seeking the identity of alleged
> infringers using a peer-to-peer file-sharing network. Verizon refused
> on the principle that the DMCA subpoena power applies only if the
> infringed material is stored or controlled on the service provider's
> system or network pursuant to subsection (c) of the DMCA, and
> presented several constitutional challenges to the DMCA. The RIAA
> contended that the DMCA subpoena power under section 512(h) applies to
> all service providers falling within the provisions of subsections (a)
> through (d), including Verizon. The district court rejected Verizon’s
> statutory and constitutional challenges to § 512(h) and ordered the
> disclosure of the names of the alleged infringers.
>
> The Court of Appeals Reversed And Ordered That The Subpoenas Be
> Quashed.
>
> On appeal, Verizon renewed its alternative arguments for reversing the
> orders of the district court. First, it argued that §512(h) does not
> authorize the issuance of a subpoena to an ISP acting solely as a
> conduit for communications the content of which is determined by
> others. Verizon argued that the subpoenas obtained by the RIAA fail to
> meet the requirements of the DMCA in that they did not – and cannot
> (because Verizon is not storing the infringing material on its server)
> – identify material "to be removed or access to which is to be
> disabled" by Verizon, and § 512(h)(4) makes satisfaction of the
> notification requirement in subsection (c) a condition precedent to
> issuance of a subpoena. According to the RIAA, the purpose of § 512(h)
> being to identify infringers, a notice should be deemed sufficient so
> long as the ISP can identify the infringer from the IP address in the
> subpoena. If the statute does authorize such a subpoena, Verizon
> argued, then the statute is unconstitutional. The Court of Appeals
> found the statutory issue dispositive and failed to reach the
> constitutional issues.
>
> Writing for the Court of Appeals, Chief Judge Ginsburg concluded that,
> "We conclude from both the terms of § 512(h) and the overall structure
> of § 512 that, as Verizon contends, a subpoena may be issued only to
> an ISP engaged in storing on its servers material that is infringing
> or the subject of infringing activity." The Court of Appeals found it
> significant that the so-called "notice and take down" provision
> noticeably is present in sections 512(b)-(d), and noticeably absent in
> section512(a). The Court concluded that the defect in the RIAA’s
> notification was not a mere technical error nor "insubstantial"
> notification: "The RIAA’s notification identifies absolutely no
> material Verizon could remove or access to which it could disable,
> which indicates to us that § 512(c)(3)(A) concerns means of
> infringement other than [peer to peer] file sharing." 351 F.3d at
> 1236. The Court flatly rejected the RIAA’s argument that the
> definition of "[internet] service provider" in section 512(k)(1)(B)
> makes section 512(h) applicable to an ISP regardless what function it
> performs with respect to infringing material as borderline "silly".
> The Court wrote: "Define all the world as an ISP if you like, the
> validity of a § 512(h) subpoena still depends upon the copyright
> holder having given the ISP, however defined, a notification effective
> under § 512(c)(3)(A)." Id.
>
> The Court of Appeals next agreed with Verizon’s argument that the
> presence in section512(h) of three separate references to
> section512(c), and that the absence of any reference to section512(a)
> suggests the subpoena power of section512(h) applies only to ISPs
> engaged in storing copyrighted material and not to those engaged
> solely in transmitting it on behalf of others. The Court held that,
> although the subpoena power applies to an ISP storing infringing
> material on its servers in any capacity, it "does not apply to an ISP
> routing infringing material to or from a personal computer owned and
> used by a subscriber." Id. at 1237.
>
> Finally, the Court of Appeals rejected the RIAA’s contention that the
> legislative history of the DCMA indicates that the subpoena power
> should be interpreted to reach peer-to-peer file sharing networks. The
> Court held that it is "clear (albeit complex), [that] the legislative
> history of the DMCA betrays no awareness whatsoever that internet
> users might be able directly to exchange files containing copyrighted
> works." Id. at 1238. The Court refused to re-write the DMCA to address
> a problem that Congress left unsolved.
>
> _______________________________________________
>
>
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