Verizon Wins Against DMCA Subpoenas

As reported by Donna Wentworth on Copyfight, Verizon has emerged victorious in its effort to thwart the RIAA's subpoenas under the DMCA (Verizon Wins Victory for Privacy). The US Court of Appeals for the District of Columbia Circuit has reversed a lower court's ruling and held that the RIAA may not send subpoenas to ISPs for information on alleged infringers using P2P. Read the DC Circuit decision: RIAA v Verizon [PDF].

The decision is a victory for privacy, but not a victory for privacy as such.

The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. A DMCA notice-and-takedown letter can only be sent to the ISP if the ISP can remove access to the material (and not if the only way to remove access is to terminate a user's account). Thus, a copyright owner cannot send a DMCA notice-and-takedown to an ISP for what a user shares via P2P (the ISP can do nothing but terminate the user's account, which is not a remedy under a DMCA notice-and-takedown letter). Consequently, if no notice-and-takedown may be sent, no subpoena may be issued.

The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.

What does all this mean?

First, the RIAA has nearly hosed itself. They were trying to issue all the subpoenas through the DC Circuit and not through the other circuits. They did this for administrative reasons and in order to preserve what they thought would be a victory for their interpretation of the DMCA in the DC Circuit. Of course, MIT and others fought this interpretation, forcing the RIAA to issue subpoenas through other circuits. There is also an ongoing legal battle between the SBC and the RIAA in San Francisco, one of the questions of which is why the case is not being heard in DC as the RIAA desires desired. Ooops. Of course, the RIAA (being the weasels they are) can shift on a dime and forum shop their subpoenas in other circuits, looking for a circuit split. However, the DC Circuit decision is bound to be rather influential and many other courts will find it persuasive.

Second, this will greatly increase the pressure on Congress to address the P2P issue directly. With losses in the Kazaa case and now the Verizon case, the RIAA has few recourses in existing law to fight massive copyright infringement. The pressure that will be exerted on Congress to act will be quite large, and the outcome will be indeterminate.

Of course, the RIAA (and its members) do retain the ability to sue infringers under John Doe lawsuits and then have subpoenas issued to ISPs. This would be a tremendous administrative burden on the courts and thus increase pressure on Congress to act. Additionally, the settlements that the RIAA would have to get from P2P file sharers would likely have to be higher to recoup at least some of the additional costs of filing hundreds, if not thousands, of lawsuits.

A quibble with the decision, however, is the following sentence:

The issue is whether § 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons sending and receiving e-mail or, as in this case, sharing P2P files.

I believe that the analogy between email and P2P is misleading. E-mail is often one-to-one, but can also be one-to-many. A webpage is technically one-to-one (every webpage served is a single transaction between server and browser), but operates as a one-to-many distribution. P2P is technically one-to-one, but operates as one-to-many. Yes, the ISP in this case is simply a conduit and should be treated as such, but we should not misleadingly analogize one-to-one transfers with one-to-many, unless one consistently refers to webpages as data transferred between two internet users as well.

EFF has a statement (Court Rules Verizon Can Refuse to ID Customers to Music Industry).