The Recording Industry Association of America (RIAA) served two separate subpoenas, both under the Digital Millennium Copyright Act (DMCA), on Verizon Internet Services, seeking the identities of two of Verizon’s anonymous users. Both users allegedly made copyrighted music available for download over the Internet. Verizon attempted to quash both subpoenas, or in the alternative to stay enforcement pending appeal. The DC District Court denied Verizon’s claims and its request for a stay.Verizon claimed that § 512(h) of the DMCA, which allows copyright owners to request that a district court clerk issue a subpoena to a service provider for the name of an alleged copyright infringer, violates Article III of the U.S. Constitution by authorizing federal courts to enforce a subpoena without any pending case or controversy. Verizon also claimed that § 512(h) violates the First Amendment rights of Internet users by depriving them of their constitutional right to anonymity without providing sufficient procedural safeguards.
On the first issue, the court reasoned that a subpoena under § 512(h) is a ministerial act rather than an action of the court, because the clerk issues the subpoena without exercising any form of discretion. Since issuing such a subpoena is not an action of the court, the court is not acting outside of the bounds of its legitimate function when such subpoenas are issued in the absence of a case or controversy. Even if issuing the subpoena were a judicial act, it is one of many cases, including issuing warrants and authorizing testimony by deposition, in which courts functions outside the scope of an actual adversarial proceeding. Further, the plaintiff need not intend to ever file a case in order for the court to perform these actions.
On the second issue, the court held that the DMCA does not impact protected speech because there is no First Amendment protection for copyright infringement, even if it is in the form of speech. Also, because the DMCA does not directly regulate speech or restrain free expression, and instead only allows the copyright holder to obtain the alleged infringer’s identity, it has only a minimal First Amendment protection interest. This interest is sufficiently safeguarded by the DMCA, which provides disincentives including damages and legal costs for misrepresentation on the part of the copyright holder to obtain a subpoena, as well the ability for service providers to contest such subpoenas.
Verizon then requested a stay pending appeal, which requires a showing of 1) substantial likelihood of success on the merits, 2) irreparable injury if the stay is denied, 3) lack of substantial harm to other parties resulting from the stay, and 4) serving of the public interest. Verizon had previously argued that they did not qualify as a service provider under § 512 because they did not store the infringing material on its system, serving only as a conduit for the user. Given failure of these statutory arguments and the subsequent constitutional arguments described above, †he court found that Verizon did not have a high likelihood of success in the appeal. Further, because Verizon admitted it was amenable to responding to a similar subpoena for the identity of the user if that subpoena was part of a John Doe action, it was unlikely to suffer irreparable harm if court rejected the stay. On the other hand, the users were allegedly continuing to commit copyright infringement, so the RIAA would suffer substantial harm if the stay was granted. Finally, it would be in the public interest to not alter the balance of trade-offs created in the DMCA. Since Verizon met none of the four conditions for a stay, the court denied the request.
In re Verizon Internet Services, Inc., 257 F.Supp.2d 244 (D.D.C. 2003).