The DC Circuit Court of Appeals has overturned a lower court’s ruling in the case of RIAA vs. Verizon. The issue in dispute is the interpretation of § 512(h) of the Copyright Act. § 512(h) was modified by the Digital Millennium Copyright Act of 1998. The Circuit Court defines the issue thus in its opinion:


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. Verizon contends § 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 § 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 § 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.

Although § 512 on its face does appear to permit subpoena of any ISP involved in any capacity, the law overall is fairly specific. Particularly, §§ 512(a)-(d) are relevant:

(a) . . .A service provider shall not be liable for . . . infringement of copyright by reason of the provider’s transmitting, routing, or providing 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. . .

There is much more to the section, which the reader may peruse and I won’t duplicate in full here.

While the RIAA may have a legitimate problem concerning the theft of copyrighted material, the DMCA’s addendum to Copyright Law does not provide any legal basis for compelling an ISP to turn over information regarding the identity of subscribers when that ISP is acting only as a conduit, and is not actually storing or providing illegal material:


Finally, the RIAA argues the definition of ‘‘[internet] service provider’’ in § 512(k)(1)(B) makes § 512(h) applicable to an ISP regardless what function it performs with respect to infringing material – transmitting it per § 512(a), caching it per § 512(b), hosting it per § 512(c), or locating it per § 512(d).

This argument borders upon the silly. The details of this argument need not burden the Federal Reporter, for the specific provisions of § 512(h), which we have just rehearsed, make clear that however broadly ‘‘[internet] service provider’’ is defined in § 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 § 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective
under § 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 § 512(c)(3)(A)(iii) and is therefore ineffective.

In sum, we agree with Verizon that § 512(h) does not by its terms authorize the subpoenas issued here. A § 512(h) subpoena simply cannot meet the notice requirement of § 512(c)(3)(A)(iii).

It must be noted that this court decision does not say that RIAA does not have the legal right to subpoena an ISP that does meet the requirements of § 512(h). In other words, this ruling is not a declaration that the RIAA cannot sue people. It is not a ruling concerning copyrighted material, per se.

This ruling merely states that the DMCA is not legal authorization for some of the stunts the RIAA has been pulling (such as forcing an ISP that is just a conduit and not a host of illegal material to hand over data on its subscribers). The DMCA predates the explosion of P2P file sharing and does not make reference to it.

RIAA has been attempting to lay some kind of legal responsibility on the shoulders of ISPs that are not in violation of the DMCA as written. There is probably also an implicit threat of “give us this information or we’ll sue the ISP, too”. This case only came about because Verizon refused to answer the subpoenas RIAA gave them. Other ISPs had complied with the requests.

It pays to have lawyers who know what they’re talking about.

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