Re: 1/22/03 - RIAA v. Verizon
Here's a snippet of the court ruling:
4. "John Doe" Actions As an Alternative
Verizon maintains that under its construction of the DMCA, with the subsection (h) subpoena power limited to service providers under subsection (c), owners would still have an adequate means to protect their copyrights. Verizon suggests that as an alternative RIAA may bring a "John Doe" action in federal court to obtain information identifying copyright infringers who, under subsection (a) of the DMCA, transmit infringing material over a service provider's network. As Verizon sees it, the copyright owner would file a complaint against John Doe, the unnamed infringer, and a third-party subpoena would then be issued and served on the service provider pursuant to Fed.R.Civ.P. 45. The service provider would then inform John Doe (its customer) of the lawsuit. Under this process, Verizon asserts, there would be protections, both procedural and substantive, for the user's rights, and service providers would have the opportunity to seek to quash the subpoena.
The short answer to Verizon's suggestion is that there is absolutely nothing in the DMCA or its history to indicate that Congress contemplated copyright owners utilizing John Doe actions in federal court to obtain the identity of apparent infringers, rather than employing the subsection (h) process specifically designed by Congress to address that need. Moreover, as Verizon concedes, the burden on service providers is certainly no greater with a DMCA subpoena than with a Rule 45 third-party subpoena.
The additional burden on copyright owners, however, would be considerable, given the effort and expense associated with pursuing such John Doe suits in court. Congress has noted the vast extent of copyright piracy over the Internet, and growing numbers of suits involving disputes over the sufficiency of allegations of infringement and other issues would, in turn, likely undermine the determination of copyright owners to prosecute such actions. Importantly, the time and delay associated with filing complaints and pursuing third-party subpoenas in court would undermine the ability of copyright owners to act quickly to prevent further infringement of their copyrights. That is at odds with the design of Congress through the DMCA, which commands "expeditious" issuance of and response to subpoenas under subsection (h). Moreover, Verizon overlooks altogether the burden on the federal courts from large numbers of such actions. Federal courts have exclusive jurisdiction over copyright actions, and considering the extent of Internet copyright piracy could become inundated with John Doe actions seeking the identity of copyright infringers. See NBC, Inc. v. Copyright Royalty Tribunal, 848 F.2d 1289, 1295 (D.C. Cir. 1988) ("the federal courts . . . have exclusive jurisdiction over actions 'arising under' the Copyright Act, such as infringement actions"). Undoubtedly, the John Doe actions contemplated by Verizon would be more complex (involving three-party litigation) and time consuming than occasional enforcement actions for DMCA subpoenas.
Not only are John Doe actions more burdensome and less timely, but in several important ways they are less protective of the rights of service providers and Internet users than is the section 512(h) process. The DMCA mandates that a copyright holder fulfill several requirements under subsection (h) before the holder can obtain information from the service provider identifying the infringer. These protections ensure that a service provider will not be forced to disclose its customer's identifying information without a reasonable showing that there has been copyright infringement. Thus, to obtain a subsection (h) subpoena a copyright owner must have a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," § 512(c)(3)(A)(v), and must provide a "statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed," § 512(c)(3)(A)(vi). Moreover, Congress required a copyright owner to submit
“a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.”
17 U.S.C. § 512(h)(2)(c). These requirements provide substantial protection to service providers and their customers against overly aggressive copyright owners and unwarranted subpoenas. Indeed, they provide greater threshold protection against issuance of an unsupported subpoena than is available in the context of a John Doe action. And, of course, nothing in the DMCA precludes a service provider from raising non-compliance or other objections to a subsection (h) subpoena. See, e.g., ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001) (action addressing service provider's resistance to subpoena for non-compliance with the DMCA). [14]
Given these various protections incorporated into the DMCA subpoena process, [15] the Court concludes that Verizon's suggestion that John Doe actions are an adequate alternative remedy is not convincing. There is nothing in the DMCA to indicate that Congress intended that result. Such actions would be unworkable, far too slow, and uneconomical for copyright holders, and much too burdensome for the federal courts. Congress did not, in the Court's view, contemplate some service providers subject to the DMCA facing expeditious subsection (h) subpoenas, while others would only have to provide information identifying infringers through the slower, more cumbersome process of a John Doe action. Indeed, Verizon's suggestion would mean subpoenas under subsection (h) -- if limited to subsection (c) service providers -- would be delayed by complex factual issues involving whether a subsection (c) setting was actually presented, while subpoenas to all other service providers would be pursuant to even more burdensome, and slower, John Doe actions. Such a cumbersome, dual structure is flatly inconsistent with the "expeditious" subsection (h) subpoena process, and would run a serious risk of dissuading copyright owners from seeking the identity of apparent infringers and protecting their copyrights.16 That result would be contrary to Congressional intent as evidenced in the text, structure and history of the DMCA.
17 Verizon devotes only two sentences and a footnote to the constitutional issues, contending that the subsection (h) subpoena authority, if broadly construed, raises substantial Article III (judicial power) and First Amendment (freedom to engage in anonymous speech) questions. See Verizon Opp. at p. 4.
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[14] The DMCA also provides disincentives for false representations under the Act, making it costly for anyone to seek a subpoena on the basis of intentional misrepresentations, and thereby further ensuring that subpoenas will only be used in circumstances of good faith allegations of copyright infringement. Subsection (f) of the Act provides: Misrepresentations - Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer . . . or by a service provider, who is injured by such misrepresentations, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing . .
. .
17 U.S.C. § 512(f).
[15] Indeed, the requirements for obtaining a section 512(h) subpoena are precisely the type of procedural requirements that other courts have imposed for subpoenas on service providers to identify anonymous posters of messages on the Internet. See Doe v. 2TheMart.com. Inc., 140 F. Supp.2d 1088, 1095 (W.D. Wash. 2001) (party seeking subpoena to service provider to identify anonymous non-party must show subpoena sought in "good faith" and that identifying information sought is directly and materially relevant to core claim and unavailable from any other source); see also Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-79 (N.D. Cal. 1999).
[16] When the Court asked Verizon's counsel whether John Doe actions might be so expensive that they would "scare off" copyright owners, he responded that "[t]here is that possibility" given the protections and "hoops that have to be gone through under the John Doe suits." Tr. of Hearing (Oct. 4, 2002) at p. 62.
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