DMCA Does Not Require ISPs to Turn Over Names

Posted by Steven Wu on Friday, December 19 @ 15:31:15 EST

Good news for filesharers, bad news for the RIAA today, as the D.C. Circuit interprets the DMCA to preclude the use of subpoenas to force ISPs to turn over the names of suspected filesharers.

In a significant setback for the recording industry, a federal appeals court ruled today that Internet service providers cannot be forced to turn over the names of subscribers who are suspected of illegally sharing music on line. The ruling by a three-judge panel expressed sympathy for the recording industry, which has been hit hard by piracy and file-sharing among computer users. But it concluded that nothing in the law authorizes special subpoenas against Internet service providers compelling them to identify customers who might be engaging in copyright infringement.

The case is RIAA v. Verizon Internet Services, Inc.. The holding of the case is succinctly stated:

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. . . . 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.

Amusingly, there is also a small jab at the RIAA’s legal arguments in the decision.

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 . . . This argument borders upon the silly. The details of this argument need not burden the Federal Reporter. . . .

It’s worth emphasizing that the D.C. Circuit ruled this way solely as a matter of statutory interpretation. Congress could very easily reverse this case by simply revising the language of the DMCA.