Internet Service Provider Must Disclose Subscriber ID

A federal judge has ordered an Internet Service Provider (ISP) to turn over the identity of a person suspected by a recording industry association of pirating recordings on-line.The judge found that the Digital Millennium Copyright Act of 1998 (DMCA) gave copyright owners the right to obtain subpoenas to force ISPs to give them information on alleged infringers who use the ISP’s network to transport infringing material.The case, Recording Industry Assn. Of America v. Verizon Internet Services, involves Verizon’s refusal to turn over identifying information for one of its subscribers who the RIAA believed infringed on over 600 copyrights by using Verizon’s network to download the songs using peer-to-peer software provided by KaZaA, without the copyright holders permission.Verizon argued unsuccessfully that the subpoena powers under the DMCA applied only when the copyrighted material was stored on Verizon computers and not when the Verizon network was used only to transmit the copyrighted materials. However, Verizon’s position was a “strained reading of the Act,” U.S. District Court Judge John D. Bates found.

Under the DMCA, a copyright owner is permitted to seek the identity of an ISP’s customer who is alleged to be infringing a copyright. The subpoena is issued by the clerk of the court and requires the ISP “”to expeditiously disclose”” information sufficient to identify the alleged infringer.

The RIAA obtained such a subpoena for Verizon to provide the information on the alleged infringer. However, Verizon declined to provide the information stating that the DMCA only required it to provide the information if the infringing material was stored on a Verizon server. Since the infringer only used the Verizon network, it argued that it did not have to disclose the information.

Judge Bates found that the language of the DMCA was clear that Verizon had to supply the information because the Act applied to both instances when the infringing material was stored on its server and in instances where the infringing material was obtained over the Verizon network.

The judge noted that because of the ease by which digital works can be copied and distributed worldwide virtually instantaneously, the DMCA contemplated a “rapid subpoena process designed quickly to identify apparent infringers and then curtail the infringement.” He found that it made no sense to distinguish between whether the infringing material was stored on the ISP’s server or merely transmitted over the ISP’s system.

He found that one of the purposes of the DMCA was to give “safe harbors” to ISPs in infringement actions. But, he added, the tradeoff was that the DMCA also was intended to require the ISPs to assist copyright owners in protecting their copyrights. He wrote:

Congress thus created tradeoffs within the DMCA: service providers would receive liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers’ systems. At the same time, copyright owners would forgo pursuing service providers for the copyright infringement of their users, in exchange for assistance in identifying and acting against those infringers.

Verizon suggested that the copyright owners could have filed a “John Doe” lawsuit against the infringers then issued a subpoena to find out their identity. Judge Bates rejected this argument, finding it to be an additional burden on the copyright owners.

“Congress has noted the vast extent of copyright piracy over the Internet, and growing numbers of suits involving disputes over the sufficiency of the allegations of infringements 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’ issues of and response to subpoenas” under the Act, he wrote.