There was a case decided on Friday by a federal appeals court, the U.S. Court of Appeals for the District of Columbia, that is so significant in its implications, at least to my reading, that I thought it worthwhile to explain it in detail. This is the second case I've seen now where someone tried to use the DMCA for a purpose not intended by the legislators and in both cases it has now failed. Verizon brought a Motion to Quash in the RIAA v. Verizon case, and the order Friday granted Verizon's motion.
If you click on Law.com's dictionary and type in "quash" you will find out it just means this:
to annul or set aside. In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as 'quashing' service of a summons when the wrong person was served. In this case, it's a subpoena that is now quashed.
It isn't every day you read a judge write that a party's argument "borders upon the silly", but that is exactly how the judge here characterized one of the RIAA's arguments. In short, he wasn't even close to being persuaded, despite recognizing what he viewed as the seriousness of the situation faced by the RIAA in trying to stop file trading.
Because SCO has mentioned copyright lawsuits and the DMCA in the same breath, it's also a good idea if we all get very familiar with the law and how it is supposed to work. The best way to understand a law, in my experience, isn't to read it, although it's a good first step. The way to understand it is to read what the legislators said they meant and then to read the cases to see how judges have interpreted it.
This case, RIAA v. Verizon, is such a clear explanation of one particular section of the DMCA, I think you'll enjoy learning by reading it.
The court has, with this ruling, made it much harder for the RIAA to go after copyright infringers. They can't just get a clerk to sign a subpoena, send it to an ISP and get a subscriber's name, so they can go after the person. Because of this ruling, they'll have to take a different route, as I understand it, filing a "John Doe" case first, asking the court to tell them who the person is, which it may or may not agree to do. The RIAA will have to persuade the judge of two things: that they have a meritorious case and that they need to out the person instead of suing them as John Doe. If they succeed there on both prongs, then they can get the person's name and sue the alleged infringer by name.
It's far more expensive than a simple DMCA subpoena. Alternatively, they can try to pass a new law that gives them the powers they seek. According to Senator and songwriter Orrin Hatch, the father of our Mr. Hatch, Brent Hatch, one of the lawyers for SCO in the SCO v. IBM case, there will be a push now in Congress to write a law that does what the RIAA wants. Still, it's more uphill for the RIAA now, and they are going to have to spend more time and money to take this to the next level. They can't just serve a clerk-issued subpoena on an ISP, get the names of infringers, threaten to sue and work out a deal with the terrified mothers of 12-year-old girls any more. There will be judicial oversight of the process. It's a major setback to the RIAA in its battle against file traders.
Those are the facts of the case and its implications, but the details are more interesting, to me, anyway, than the conflict between the RIAA and file sharers. Just as a programmer can find it very interesting to work on a challenging project for a boring company that makes the same widget all day long and nothing more stirring than that or even enjoy coding for a company he doesn't much like, so in the legal field the arguments are more interesting to those in the field than what the case happens to be about. Sometimes there is a dovetail of both. Making new law is what litigators live for. And Verizon just got a judge to fine-tune our understanding of the subpoena provisions of the DMCA's Section 512. Copyright law's landscape just experienced a bit of an earthquake.
The RIAA wanted Verizon to turn over the names of some of its customers who, the RIAA said, were illegally sharing music using P2P software like Kazaa. Verizon didn't want to do that. They lost in a first scuffle in the lower court, but they bothered to take the time and trouble and spend the money to appeal. Some unknown, to me, attorney at Verizon (the company's attorney is Sarah Deutsch) had a legal brainstorm. It's the kind of brainstorm that changes the whole playing field. And whoever it is, I salute him or her or them. I also admire this court for the careful analysis given to the arguments and for understanding the brainstorm argument and accepting it.
The impression I have formed is that some in the legal community have been viewing the DMCA as a handy "quick and dirty" way to get what they wanted for their clients, using the geek meaning of quick and dirty. It was quick, cheap and easy. And that is exactly what made it so likely to be abused, according to critics of the strategy. Verizon saw the issue in just those Constitutional, free speech terms, and more:
Verizon's lawyer, Sarah Deutsch, called Friday's ruling "an important victory for all Internet users and all consumers." She said the music industry should be required to file traditional civil lawsuits -- which are more expensive and time consuming -- to prosecute downloaders.
Let me state that I don't personally download music, unless I have paid for it. I always try to keep the law, whatever it is, if only because it's my field, and that isn't the only reason. I believe in obeying laws, with the only exception being the kind that might get you prosecuted in a Nuremberg court or before the Almighty for violations of his laws. That isn't something that usually comes up in the normal course of events, usually never in a person's lifetime. And this ruling isn't saying that the RIAA has no right to protect its copyright interests. But the DMCA and the way it was being used raised Constitutional questions in my mind. This judge, Chief Judge Douglas Ginsburg, although he seemed sympathetic to the RIAA's perceived problem with file traders, just couldn't see the DMCA as having been written to solve that particular problem. He refused to pretend that it did. And he refused to bend the law to suit the circumstances.
"Consumers' rights cannot be trampled upon in the quest to enforce your copyright," Ms. Deutsch said.
This is what I love so much about the law. You hear nasty lawyer jokes all the time, I know. So do I. And when there are decisions in a court that people don't like, it's not unusual to hear some cracks about the judge and the legal system. But my view is that these folks are what stand between us and chaos, between us and the bully process, whereby special interests grab whatever they want at the expense of everyone else, based on money and power. The parties naturally fight for what they perceive to be in their best interest. But judges are supposed to look at the bigger picture and to consider the impact on the general public as well. Frankly, they sometimes seem to be the last ones in the scheme of things still reliably looking at anything but the bottom line. Decisions are sometimes disappointing, but now and then, a judge stands up and says: we have a rule of law here, and no matter who you are, no matter how much money you have, no matter how powerful your friends are, here in my courtroom, the law is applied fairly and without partiality. When you see it happen, it's a beautiful sight.
Judges don't do what they do for the money. They make an OK living, but there are easier ways to make money, lots more money than a judge will ever see, if he or she is honest. They do it because they love the law and the protections it is meant to provide to everyone, they love finding the balance, the attempt to decide fairness, the interplay between private interests and Constitutional guarantees, the opportunity to figure out what the framers of the Constitution and the lesser laws had in mind in the first place. The US legal system is based on the fundamental principle that when you go to court, it ought to actually be justice that you get. There has always been an idealism built into the country's judicial branch that moves my heart.
Judges are supposed to be the implementers and real-world fine-tuners of the decisions the legislators make. In this case, that is exactly what happened. A judge would have liked to rule differently, probably, all things being equal, but he noticed a detail in the DMCA, thanks to Verizon's brilliant attorney(s) and his own reading of the legislators' stated intent, and he couldn't get around what he saw. That is the the rule of law, where you accept what it says, regardless of personal feelings, out of respect for the process.
And one other thing: if there is one thing people invariably resent, it's paying legal fees. But bear in mind that you are paying someone to think creatively for you, and that does take time. You can't do a good job without taking the time to research and really think things through in great detail. The more you pay your lawyer, the more he will do that for you. The less you are willing to pay, the less time he or she will be able to devote to that very necessary part of the whole. What you are paying for is not only their prior knowledge of the law, not just to have them show up in court for you. You are paying them to think about the law and how it applies to your situation. It takes time to do that well.
Here, Verizon's legal team thought very well indeed. It takes time and a background in a particular field to know what might make a difference in a case, and then it takes courage to put the idea forward, particularly if it's a new idea that has never prevailed in a case before, maybe never even been tried before. They did exactly that, and despite amicus briefs by the US [PDF] and the Department of Justice [PDF], Verizon won. If I had come up with the arguments Verizon put forward, I'd be happy for the rest of my life just thinking about it and remembering it and bragging to my grandkids someday about it. Let's take a look at the ruling [PDF].
First, you need to read the DMCA, Section 512, because Verizon makes detailed arguments based on various sections of that law. So go here to read Section 512 of the DMCA. The
DMCA itself is here, as a PDF from the Library of Congress, if you are interested, and here it is as html. Some information explaining it can be found here on EFF's site and on the Association of Research Libraries site, and the RIAA has a page, DMCA Subpoena Fact Sheet that explains their position. But the DMCA's Section 512(h) is what you need to read to understand this case. Section 512(h) is the section of the DMCA that makes it possible to serve subpoenas on ISPs to force them to disclose the names of internet users; 512(c)(3)(A) is the takedown notice.
Here is Google's page explaining the notice of infringement process. And here is ChillingEffects Clearinghouse's FAQ explaining how to counter such a notice. If you follow the process and file a counternotice, the ISP can put your materials back up and then it's up to the copyright holder to bring an action within 14 days. Here is the exact language of the DMCA's Section 512(h):
(h) Subpoena To Identify Infringer. -
This, then, is what looked so simple and appealing to the RIAA. No need to even ask a judge's permission to obtain the subpoena. Just file with the court, and presto! You are in business. The ISP has no choice but to comply. Or so they thought.
(1) Request. - A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
(2) Contents of request. - "The request may be made by filing with the clerk -
(A) a copy of a notification described in subsection (c)(3)(A);
(3) Contents of subpoena. - The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.
(4) Basis for granting subpoena. - If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.
(5) Actions of service provider receiving subpoena. - Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.
(6) Rules applicable to subpoena. - Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.
But Verizon said, Wait just a minute, here. We are an ISP. In the case of file traders, with Kazaa and that type of file trading arrangement, there is nothing stored by us. We provide internet access only. We can't be in the business of regulating what people do with their own computers, just as we can't be responsible for what they say in email, which we merely transmit.
The RIAA said, Oh, Your Honor, this Section 512 is part of the entire Section and we have the right to demand that they just hand over the names and we'll do the rest.
Verizon noticed a detail that had escaped notice before. Section 512(h), they argued, does not authorize the issuance of a subpoena to an ISP that merely transmits infringing material but does not store it on its servers. The RIAA argued Section 512(h) authorizes the issuance of a subpoena without regard to whether the ISP is acting as a conduit for user-directed communications. The judge decided from both the terms of Section 512(h) and the overall structure of Section 512(h) 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."
If you take the time to follow the judge through the details of his decision, you'll see why I love the law so much and find it so endlessly intriguing. Here, then are some excerpts from the decision. I'm hoping to eventually put up the US and DOJ briefs as well. In the meanwhile, the entire case archive is available on EFF's site.
Because SCO began its saga by stating it explicitly intended to follow the RIAA's M.O. and hinted we might even see a government amicus in their case in support of their position, it is probably time to read and understand what their position is. Or, I might more accurately say, was. This case has altered what anyone's position can legally be, no matter how hot emotions are on either side. Here are some of the judge's careful reasons for why he ruled the way he did and I hope you find it as fascinating as I do:
On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) Section 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; if the statute does authorize such a subpoena, then the statute is unconstitutional because (2) the district court lacked Article III jurisdiction to issue a subpoena with no underlying 'case or controversy' pending before the court; and (3) Section 512(h) violates the First Amendment because it lacks sufficient safeguards to protect an internet user's ability to speak and to associate anonymously. Because we agree with Verizon's interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon's constitutional arguments. . . . .
When Verizon refused to disclose the name of its subscriber, the RIAA filed a motion to compel production pursuant to the Federal Rule of Civil Procedure 45(c)(2)(B) and Section 512(h)(6) of the Act. In opposition to that motion, Verizon argued Section 512(h) does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to exchange files. The district court rejected Verizon's argument based upon "the language and structure of the statute, as confirmed by the purpose and history of the legislation," and ordered Verizon to discloseto the RIAA the name of its subscriber. In re Verizon Internet Servs., Inc., 240 F.Supp.2d 24, 45 (D.D.C. 2003) (Verizoon I).
The RIAA then obtained another Section 512(h) subpoena directed to Verizon. This time Verizon moved to quash the subpoena, arguing that the district court, acting through the Clerk, lacked jurisdiction under Article III to issue the subpoena and in the alternative that Section 512(h) violates the First Amendment. The district court rejected Verizon's constitutional arguments, denied the motion to quash, and again ordered Verizon to disclose the identity of its subscriber. In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 247, 275 (D.D.C. 2003) ( Verizon II ).
Verizon appealed both orders to this Court and we consolidated the two cases. As it did before the district court, the RIAA defends both the applicability of Section 512(h) to an ISP acting as a conduit for P2P file sharing and the constitutionality of Section 512(h). The United States has intervened solely to defend the constitutionality of the statute. . . .
The issue is whether Section 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons sending and receiving email or, as in this case, sharing P2P files. Verizon contends Section 512(h) does not authorize the issuance of a subpoena to an ISP that transmits infringing material but does not store any such material on its servers. The RIAA argues Section 512(h) on its face authorizes the issuance of a subpoena to an "[internet] service provider" without regard to whether the ISP is acting as a conduit for user-directed communications. We conclude from both the terms of Section 512(h) and the overall structure of Section 512(h) 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. . . .
Infringing material obtained or distributed via P2P file sharing is located in the computer (or in an off-line storage device, such as a compact disc) of an individual user. No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable" access to the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.
The RIAA contends an ISP can indeed "disable access" to infringing material by terminating the offending subscriber's internet account. This argument is undone by the terms of the Act, however. As Verizon notes, the Congress considered disabling an individual's access to infringing material and disabling access to the internet to be different remedies for the protection of copyright owners, the former blocking access to the infringing material on the offender's computer and the latter more broadly blocking the offender's access to the internet (at least via his chosen ISP). . . . These distinct statutory remedies establish that terminating a subscriber's account is not the same as removing or disabling access by others to the infringing material resident on the subscriber's computer.
The RIAA points out that even if, with respect to an ISP functioning as a conduit for user-directed communications, a copyright owner cannot satisfy the requirement of Section 512(c)(3)(A)(iii) by identifying material to be removed by the ISP, a notification is effective under Section 512(c)(3)(A) if it "includes substantially" the required information; that standard is satisfied, the RIAA maintains, because the ISP can identify the infringer based upon the information provided by the copyright owner pursuant to Sections 512(c)(3)(A)(i)-(ii) and (iv)-(vi). According to the RIAA, the purpose of a Section 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.
Nothing in the Act itself says how we should determine whether a notification "includes substantially" all the required information; both the Senate and House Reports, however, state the term means only that "technical errors . . . such as misspelling a name" or "supplying an outdated area code" will not render ineffective an otherwise complete Section 512(c)(3)(A) notification. . . . Clearly, however, the defect in the RIAA's notification is not a mere technical error; not could it be thought "insubstantial" even under a more forgiving standard. The RIAA's notification identifies absolutely no material Verizon could remove or access to which it could disable, which indicates to us that Section 512(c)(3)(A) concerns means of infringement other than P2P file sharing.
Finally, the RIAA argues 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 -- transmitting it per Section 512(a), caching it per Section 512(b), hosting it per Section 512(c), or locating it per Section 512(d).
This argument borders upon the silly. The details of this argument need not burden the Federal Reporter, for the specific provisions of Section 512(h), which we have just rehearsed, make clear that however broadly "[internet] service provider" is defined in Section 512(k)(1)(B), a subpoena may issue to an ISP only under the prescribed conditions regarding notification. Define all the world as an ISP if you like, the validity of a Section 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective under Section 512(c)(3)(A). And as we have seen, any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of Section 512(c)(3)(A)(iii) and is therefore ineffective.
In sum, we agree with Verizon that Section 512(h) does not by its terms authorize the subpoena issued here. A Section 512(h) subpoena simply cannot meet the notice requirement of Section 512(c)(3)(A)(iii).
1 As it happens, on Friday the Dutch Supreme Court ruled that Kazaa cannot be held liable for copyright infringement of music or movies swapped on its free software, upholding an earlier appellate-court verdict dismissing a Dutch equivalent of the RIAA's suit against Kazaa.
[Note: This article was updated in 2009 to fix broken links, which in some cases required finding alternative contemporaneous resources. In 2004, Groklaw published an interview with Sarah Deutsch about this case, which might also interest you.]