Verizon 512(h) Decision

Is out. Looks like the RIAA won and Verizon will be forced to respond to a subpoena under 17 USC 512(h) without a lawsuit being filed. More to come after I have read it.

Later: The ruling is (almost) all about statutory construction. Verizon argued that 512(h), which allows copyright holders to serve subpoenas on service providers for users' identities without the necessity of filing suit, did not apply to service providers covered by Section 512(a), including Verizon. [A short detour to refresh readers' recollections that Section 512 is directed at four types of service providers defined in the section's subsections providing safe harbor to these providers. They are: 512(a) (mere transmitters), 512(b)(cachers), 512(c) (hosters) and 512(d) (information locators) ] Verizon argued that 512(h) did not apply to them because 512(h) requires that a 512(c)(3)(A) notice be provided. A 512(c)(3)(A) notice is part of section 512(c) (and incorporated into 512(b) and (d)) and requires, in part:

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

Verizon argued that the notice can't be applied to them because they do not host the allegedly infringing material.

The Courth sided with the RIAA and found that 512(h) covers Section 512(a) providers (and by extention 512(b) and 512(d) entities as well.) The decision discusses the constitutional issues relating to anonymous speech (and gives a lot of dicta about the lack of a problem) but declines to rule on them because they were not appropriately raised by the parties.

Other quotations from the opinion to note:

  • "The copyright holder, however, cannot readily determine whether its infringed material was stored on or merely transmitted across the service provider's system, and hence whether it faces a subsection (c) or subsection (a) situation. As a result, if the copyright owner could only utilize the subpoena process for subsection (c) service providers, it would have to establish at the outset that the service provider fell within subsection (c) in the particular case at hand." - I don't understand this, the copyright holder still has to figure out who to send the subpoena to, no? And if so, are there really instances where this would be a higher burden? Especially since good faith is all that 512(h) requires of the request.

  • "Moreover, the Supreme Court recently confirmed in Eldred
    v. Ashcroft
    that the proximity of the Copyright Clause and the First Amendment demonstrates 'the Framers' view [that] copyright's limited monopolies are compatible with free speech principles,' and that copyright serves to promote First Amendment ideals as ''the engine of free expression.'' "(citations omitted) - Again, this seems to be taking Eldred way out of context, indeed as Jack Balkin has argued, Eldred may stand for the opposite proposition with respect to paracopyrights such as those in 512(h).

See also: LawMeme, Declan, GrepLaw, Reuters, Boston Globe and, as always bringing it all together is Donna at Corante

Still Later:Donna passes along a question from Blythe that asks:

[As] we saw from the headlines, no judge is necessary to obtain the subpoena...nor, it seems, does the copyright holder have to prove infringement in order to get a subpoena.

Of course, this has always been the case because a copyright holder could simply file suit against a John Doe defendant and then serve a subpoena on the ISP. Notice that no judge is required to intervene, nor is any copyright infringement proven before the information is turned over. However, there is a line of cases attempting to change that with some success in the defamation context. See e.g. Dendrite International v. John Does, et al.

[T]he following four requirements ... must be satisfied in order to discover the actual identity of a defendant: (1) identify the missing party with sufficient specificity such that the court can determine that defendant is real person or entity who could be sued in federal or state court; (2) identify all previous steps taken to locate the elusive defendant; (3) establish, to the court's satisfaction, that plaintiff's suit could withstand a motion to dismiss; and (4) file a statement of reasons justifying the specific discovery requested, as well as the identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about the defendant that would make service of process possible.

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