Verizon gets surprise win in RIAA subpoena case over DMCA [ip][fs]

[Declan McCullagh <declan () well com>]

---

Date: Fri, 19 Dec 2003 07:39:21 -0800
Subject: Fwd: Verizon wins!
From: Jason Schultz <jason () eff org>
To: declan () well com


FYI, ISPs no longer have to respond to RIAA DMCA subpoenas re: P2P
sharing, at least in Washington D.C.

> D.C. Circuit accepts Verizon's statutory interpretation and reverses
> <http://pacer.cadc.uscourts.gov/docs/common/opinions/200312/03- 7015a.pdf>
>
> 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.
>
> ...
>
> [T]he text of § 512(h) and the overall structure of § 512 clearly
> establish, as we
> have seen, that § 512(h) does not authorize the issuance of a
> subpoena to an ISP acting as a mere conduit for the transmission
> of information sent by others.
>
> ...
>
> For the foregoing reasons, we remand this case to the
> district court to vacate its order enforcing the February 4
> subpoena and to grant Verizon’s motion to quash the July 24
> subpoena.
> So ordered.

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Jason M. Schultz                        (415) 436-9333 x 112
Staff Attorney                          jason () eff org
Electronic Frontier Foundation  www.eff.org


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Date: Fri, 19 Dec 2003 11:22:23 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: RIAA v. Verizon

I assume you have heard that the DC Circuit has reversed the district
court in RIAA v. Verizon, ruling that the subpoena procedure does not
apply to identify persons who use ISP services for the P2P exchange of
material that allegedly infringes a copyright, but only applies to those
who host infringing material on the ISP's servers.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200312/03-7015a.pdf


A initial  observations:

1.  Who knows whether and to what extent the various constitutional
arguments and concerns that Verizon and various public interest groups
(including Public Citizen) urged, either directly or as a reason to
construe the statute narrowly, but on the face of the opinion, at least,
constitutional concerns play no role in the analysis.  The opinion does
not even contain a overt bow to "avoiding difficult constitutional
questions"

2.  After all the times Judge Bates berated Verizon for making weak
arguments that made no sense, how satisfying will it be for Verizon to
see the statement in the Court of Appeals' decision characterizing at
least one RIAA argument as "borders on the silly".

3.  This ruling presents the interesting question of whether to pursue,
on a  principled basis, objections to transferring cases from other
courts like California to DC.  Presumably, it is now in the interest of
the individual clients to have their situations considered in DC, but
more generally we like the idea of forcing subpoenas to be litigated
where the subscribers live

<http://pacer.cadc.uscourts.gov/docs/common/opinions/200312/03-7015a.pdf>


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html


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