IN mE UNITED STATESDISTRICT COURT FOR THE DISTRICTOF COLUMBIA

rnRE:
VERIZON llIorrERNET SERVICES. INC. SubpoenaEnforcement Matter

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

RECORDINGINDUSTRY ASSOCIATIONOF AMERICA 1330Connecticut Avenue,N.W. Ste.300 Washington, D.C. 20036

v.
VERIZON ~TERNET SERVICES, INC. 1880Campus Commons Drive Reston, 20191 VA

Miscellaneous Action Case No.1 :O2MSOO323

MOTION TO ENFORCE JULY 24, 2002SUBPOENAISSUED BY THIS COURT TO VERIZON INTERNET SERVICES, INC. AND MEMORANDUM IN SUPPORTTHEREOF
The Recording Industry Association of America ("RIM 'j, as authorized representativefor its member companies,respectfully submits this motion to enforce the subpoenaissuedto Venzon Internet Services,Inc. ("Verizon") on July 24~2002 by this Court under 17 U.S.C. § 512(h) of the Digital Millemlium Copyright Act ("DMCA "). The subpoenaseekslimited infoxmation relating to a computer connectedto the Verizon network that is a hub for significant music piracy. Verizon is the only entity that can identify the infringer behind this computer.

The specialsubpoena authorityof the DMCA. 17 U.S.C. § 512(h).imposes mandatory, a.
unconditional duty on mtemet service providers such as Verlzon to provide "expeditiously," upon

receiptof a subpoena, infOmlationsufficientto identify usersof their networkswho arepirating
copyrighted works. RIM complied with all of the requirementsof the statuteand obtaineda validly

that issuedsubpoena from this Court. Verizonhasrefused comply. Thus,RIM requests this to Court enteran ordercompellingVerizonto comply. Given the urgentneedofRIAA's copyright
holders to stop the piracy of their intellectual property, RIM further requests,by a separate Motion to Expedite, that the Court expedite briefing and decide the issue as soon as possible.

LEGAL FRAMEWORK
This is a straightforward subpoenaenforcementaction. The Digital Millennium Copyright Act of 1998 ("DMCA'j, Pub. L. No.l0S-304, 112 Stat. 2860, createsa special subpoenaauthority

that requires "service providers," such as Verizon, to respondto subpoenas issuedby United States District Courts at the request of copyright owners seekinginformation sufficient to identify those

committing copyright infringement. See17 U.S.C. § S12(h). The tcnns of the statuteand its
requirements are clear and require little further analysis. Because,however, Verizon seeksto graft conditions and limitations on the subpoenaauthority that do not appearin the text of Section 512(h) and are inconsistentwith the purposeof the DMCA, additional backgroundon the statutory scheme

maybe of assistance the Court. to Congressenactedthe DMCA because the Internet has revolutionizedthe~ way that
copyrighted works are disseminated,both lawfully and unlawfully. Virtually any cop)lTighted work cannow be put in a digital format) andthus canbe copied anddistnouted worldwide instantaneously.

This can be a greatbenefit,but also leavescopyrighted works susceptible "massivepiracy." to
S. Rep. No.1 05-190, at 8 (1998). Congresswas concernedthat, unlesscopyright owners have the

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"hesitateto maketheir works readilyavailableon the Internet..' ld. Title n of the DMCA seeksto ensurethat cop.)Tight owners are able to protect their
intellectual property andto give them enhancedability to quickly and effectively deal with copyright infringement on the Internet. It does so in two ways:

SubpoenaAuthority under Section 512(h). The DMCA createsa specialsubpoena
provision that allows copyright ownersto obtain infonnation quickly concerningthe identity of those who are irifringing their copyrights on the Internet. Pursuantto 17 U.S.C. § S12(h), District Courts are authorized, at the requestof copyright owners, to issue subpoenas Internet or on-line service to providers ("service providers") where the copyright owner has a good faith belief that infringement is occurring and needsadditional infonnanon to identify the alleged infringer. § 512(h). The logic

behindthis provision is obvious. On the mtemet.identities can be hidden. Often the service
provider through whom an individual engagingin infringement obtains network accessis the only entity that can identifj the individual. Without this critical information, the copyright owner cannot deal directly with the person trafficking in pirated worlcs. Under Section512(h), CC[ copyright owner or personauthorizedto act on the owner's behalf a] may requestthe clerk of any United Statesdistrict court to issuea subpoenato a serviceprovider for

identificationof an allegedinfringer in accordance this subsection,"§ 512(h)(l). To obtain with
a subpoena. under Section 512(h). the copyright owner or its agentmust supply a "swom declaration to the effect that the purpose for which the subpoenais sought is to obtain the identity of an alleged infringer and that such information will only be used for the purposeof protecting rights under this title." § 512(h)(2)(C). The copyright owner must also file oca copy of the notification describedin

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subsection[512] (c)(3)(A).t' § 5 12(h)(1)(H). Subsection(c)(3)(A) is a freestandingprovision of the DMCA that is referencedin several different subsections the statute. It provides the elementsof of an effective notification to a service provider that itS network is being usedby others for cop}Tight

infringementandtriggersthe serviceprovider'sobligationsunderthe various subsections the of
statute. The notice provisions require, among other things, that the copyright owner, or its agent, identify the material being infringed, attestto its ownershipof the material, stateits good faith belief that the complained-ofuse is unauthorized,and provide infonnation sufficient to allow the service

provider to locate the material and, if appropriate, removeor disableaccessto the material
§ S12(c)(3)(A). By substantially complying with the elementsof subsection(c)(3)(A), the copyright owner or its agent has establishedthe bona fides of its ownership and claim of infringement. See § 512(c)(2)(B)(i). Upon receipt of the appropriatedocumentation,the DMCA requires that the clerk issue the

subpoena "expeditiously," § 512(hX4) {"If the notification filed satisfies the provisions of
subsection(cX3)(A), the proposed subpoenais in proper Conn,and the accompanying declaration is properly executed.the clerk shall expeditiously issueand sign the proposedsubpoenaand return

it to the requester deliveryto the SelVice for provider."). Onceissued. subpoena the compelsthe
service provider to disclose '4information sufficient to identify the alleged infringer of the material

described the notification to the extentsuchinfoImationis availableto the serviceprovider." in § S12(h)(3).
To achieveits PUIPOse, Section5 12(h)subpoenas must bearfruit quickly. A copyright holder basno recourseagainsta copyriiht pirate if it cannotidentify and locatethe individual. A pirate who

is able to avoid identificationcan continueinfringing, thusimpairingthe value of the copyright

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holder's intellectual property. Given the natureof the Internet, an individual user can causeliterally tens of thousandsof infringing copies to be distributed in a single day. Thus, Congressemphasized the needfor expedition. Section 512(h) makesclear that the District Court clerk shall "expeditiously issue" the requestedsubpoenaif all of the requirements are met and that, upon receipt, the service provider "shall expeditiously disclose to the copyright owner or personauthorizedby the copyright owner the information required by the subpoena,notWithstanding any other provision of law and regardlessof whetherthe serviceprovider respondsto the notification." § 512(hX5). The legislative history of Section 512(h) describesissuanceof the subpoenaas a "ministerial" act, and emphasizes

that it mustbe"perfonnedquickly for this provisionto haveits intended effect" S. Rep. 105-190
at 51. The Safe Harbor Provisions. In addition to the subpoena provisions under Section 5 12(h),

Title II of the DMCA '~reservesstrongincentivesfor serviceprovidersandcopyrightownersto cooperate detectanddealwith copyrightinfringements takeplacein the digital networked to that environment.» Rep. 105-190 40. To that end,Congress S. at established varietyof safeharbors a
for service providers to limit their own liability for copyright infringement "for 'passive,' automatic actions in which the service provider's systemengagesthrough a technological processinitiated by

another without theknowledgeof the service provider." ALSScan,Inc. v. RemarqCommunities,
Inc., 239 F.3d 619, 625 (4~ Cir. 2001).1

lEachsafeharborappliesnarrowlyto situations whereservice providersareengaging in specificfunctions,suchasrouting or transmitting digital networkcommunications (subsection (a)); system caching (subsection (b); infomlation storing(subsection (c»; andprovidingsearch tools for infonnationon the Intemet(subsection (d». S. Rep. 105-190 19-20. Whenengaging at in oneof thosespecificfunctionsandcomplyingwith the precise requirements the relevant of subsection, serviceprovidercannotbe held liable (asa resultof engaging the specified the in -5-

The safe harbor provisions do not alter the substantiveroles of copyright infringement or

contrary, the safeharbor provisions are designedto induce service providers to work together with copyright owners to identify infringers by providing somemeasureof certainty to innocent service providers that they-.will not .be-heldfinancially responsiblefor infringement that occurs over their

networks,so long astheycomply with the specificconditionsof the safeharbors. In orderto fall
within several of the safe harbors, service providers must assistcopyright owners by, for example, removing or disabling access infringing materialoncethey arenotified of cop)oright to infringement.2

See, § 512(b)(2)(E); 512(c)(lXC); § 512(d)(3).To qualifyforanyofthesafebarbors, service e.g. § a provider must also have in place a policy "for the tenninationin appropriate circumstances of subscribers and accountholders of the serviceproviders' systemor network who are repeat
inftingers." 17U.S.C. § 5 12(i)(1XA). But the "DMCA's protection ofan innocent service provider

disappears the momentthe serviceproviderlosesits innocence, at the momentit becomes at i.e.,
aware that a third party is using its systemto infringe." ALS Scan, 239 F .3d at 625. The scopeof the various DMCA safeharborsis not at issue in this case only the subpoena

-

authorityin SectionS12(h)is relevant. The safe harbor provisions, however, work together with the subpoena authorityin Section512(h) and all of the provisionsof the DMCA to promotethe
developmentof the Internet and to ensureeffective protection for intellectual property in the digital

function) for monetary relief for copyright infringement and can be subjectedto injunctive relief only as specified in Section 5120). 2Serviceproviders must comply with their obligations under several of the safe harbors any time they have actual knowledge that infringement is occurring, regardlessof whether they have ~eived a formal notification from the cop.vnghtowner. See,e.g., § 512(d)(lXA).

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world. Nothingin theDMCA creates shieldfor thosedirectly involvedin disseminating a pirated works or other violations of the copyrightlaws. That was not who Congress soughtto protect; ind~d, the entiretyof the DMCA is designed ensure suchinfringerscanbe identifiedand to that
forced to face appropriate penalties.

THE VERIZON SUBPOENA
On July 24, 2002, RIAA obtained a subpoena,issued by this Comt pursuant to 17 U.S.C. § 512(h), ordering Verizon to disclose infolmation sufficient to Pemlit identification of an alleged copyright infringer operating from a specified IP (Internet Protocol) address. SeeJuly 24, 2002, Subpoenato Verizon h1temetService, Inc. ("Subpoena.')(Attachment A). The Subpoenarequests on!y information sufficient to identify the individual subscriberwho is trafficking in pirated material

- that is, the subscriber's name.address, telephone and number. RIM

delivered Subpoena the to

Verlzon in conjunctionwith the documentation requiredby § S12(h)(2)(C), including a letter
notifying Verizon that lUAA believed a computer on V erizon' s internet servicewas distributing to

thepublic for downloadunauthorized copiesof hundreds copyrighted of soundrecordings owned
by RIM member companies. SeeLetter from JonathanWhitehead, Vice Presidentand Anti-Piracy CO1.UlSel ofRiAA, to Lauren K. Crowder, ContractsManager ofVerizon Internet Services,Inc., of

July 24, 2002.at 1 ("Notification Letter") (Attachment The letterspecified computer'sIF B). the
addressand attacheddocumentation including a list of the recordings available for download from

that computer. RIAA also provided a declarationindicating the basisfor the issuance the of Subpoena a statement, and underpenaltyof peljury. that the infolmation obtainOO ftom Venzon would only be usedfor '~rotecting the [intellectualproperty]rights" of RlAA's members. See -7-

Declarationof JonathanWhiteheadat 1 ("WhiteheadDeclaration")(AttachmentC). RIAA
requestedVerlzon's ""immediateassistance stopping this unauthorized activity." Id. in

V won

refusedto comply with the Subpoena.SeeLetter sentby ThomasM: Dailey,

GeneralCounsel ofVerizon mtemet ServicesInc., to Jonathan Whiteheadof Aug. 6, 2002 ("Verizon

that "[0]0 files of the Customerare hosted, Letter") (Attachment D). Verizon asserted because storedor cached [Verizon]," it neednot respond the Subpoena. at 2. RIM responded by to ld. by
letter, explaining that V erizon' s argumentsprovided no basisfor ignoring a subpoenaissuedunder Section 5 12(h). SeeLetter from Cary Sherman,GeneralCounselofRIAA, to Thomas M. Dailey of

Aug. 9, 2002 (Attachment Subsequent E). conversations between officials at RIM andVerizon have failed to resolvethis matter, and RIAA hasinfonned Verizon that it would be filing this motion.
AccordinglYt RIAA invokes this Court's jurisdiction pursuantto 17 U.S.C. § 512(h)(6) and

Fed. R. Civ. P. 45(c)(2)(B) to obtain an order to compel the productionof the subpoenaed
infonnation within 24 hours of the issuanceof an order from this Court.

ARGUMENT
Section512(h)of the Digital Millennium CopyrightAct is crystalclear. Wherea service provider receivesa subpoena validly issuedunderSection512(h),"the serviceprovider shall expeditiouslydiscloseto the copyrightowner or personauthorized the copyright owner the by informationrequiredby the subpoena, notwithstanding otherprovisionof law." § S12(h){5) any
(emphasisadded). The Subpoenaat issuein this casewas validly issuedby this Court, and RIAA

compliedwith all of the requirements the statute. of
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Venzon hasnot raisedany issuewith respectto the form or validity of the Subpoena or
alleged that compliance with the Subpoenais burdensome. Rather, Verizon has arguedthat it can never be required to provide information in a casesuch as this because,in its view, the DMCA does not allow a subpoenato be issuedunlessthe Verizon subscribercommitting copyright infringement using V erizon' snetwork is actuallystonng.iUegatmaterialon serversownedor operatedby Verizon.

That claim ignoresthe plain language the statute.as well as its legislativehistory and of
purpose, and would gut an important tool that Congressgave to copyright owners to protect their

intellectualproperty. Indeed,Verlzon's response the Subpoena to confuses totally different two
things: its duty as a seIvice provider to remove or disable accessto infringing matmal upon notice

(which is required in order to maintain limitations on its own liability under the safe harbor provisions)and its obligationto respondto a validly issuedsubpoena (undersubsection to (h» providethe informationthat copyrightownersneedto address infringementbeingcommittedby others. The latter obligation is the only one at issuehere. It is straightfo~ ind~dent and entirely

of whetherVerizonis eligtole for a safeharborfor itself. Uponreceiptof a subpoena

underSection512(h),the serviceprovidermustprovide the identifying information. This Court shouldcompelVenzonto do exactlythat.

L

THE DMCA REQUIRES THAT INTERNET SERVICE PROVIDERS SUCH AS VERIZON EXPEDffiOUSL Y PRODUCETHE INFORMA nON REQUESTEDBY A SUBPOENAISSUED UNDER SECTION 512(h).
Statutoryanalysisbeginswith the text. United Statesv. Braxtonbrown-Smith, 278 F.3d 1348,

1352(D.C. Cir. 2002)(citati,ons omitted); Ullit~ Slaw v. Wilson.290 F.3d 347.352 (D.C. Cir. 2002). "Wh~ the languageis clear, that is the end of judicial inquiry iI1 all but the most
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extraordinary circumstances." Braxtonbrown-.)mith, 278 F .3d at 1352(quotation marks and citation

omitted). The plain language the DMCA (reinforcedby its legislativehistory and purpose) of compels Verizon to producethe infonnationrequested this Court'sSubpoena. in

A.

Section512(h) of the DMCA Applies to ServiceProviders,Like Verizon.

Section 512(h) of the DMCA provides that a copyright owner may ask any district court "to issue a subpoenato a service provider for identification of an alleged infringer in accordancewith

this subsection." 512(h)(1)(emphasis § added).A "serviceprovider,"for purposes 512(h).is of§ broadly defmedas "a provider of online services networkaccesst the operatorof facilities or or
therefor." § 512(k)(1)(B); see alsoALS Scan,239 F.3d at 623 ("The Act defines a service provider
broadly.'); H. Rep. No.1 OS-551(fl) at S4(1998) (definition or"service provider" includes thosewho

'~rovide Internet access,e-mail," etc.). Section512(h) appliesto all "service providers" regardless

of what functionsthe serviceprovider may be performing. Here,Verizon concedes it is a that
"service provider," V enzon Letter at 2.3 Venzon is unquestionablyproviding "network access"to the subscriberreferencedin the Subpoena. It thus is subject to the subpoenaprovisions of Section

512(h).

~e term "serviceprovider" is definedin 17U.S.C.§ 512(k). Section512(k)defines "serviceprovider" in two ways:onedefinitionwhich is applicable only to Section512(a)'ssafe harbor,see17U.S.C.§ 512(kXIXA), anda broader definitionwhich is applicable the to remainder Section512,includingSection512(h),see17U.S.C.§ 512(k)(1)(B). The latter of definition expressly encompasses entitiesthat fall within the fomler. See17U.S.C.§ all 512(k)(1)(B);H. Rep.No. lOS-551(ll)at 54. In seeking claim it falls within the safeharbor to definedin § 512(a),Venzonnecessarily mustadmitit is a "serviceprovider." V erizonLetter at 2. That concession means that it is a "serviceprovider"for purposes therestof Section512, of includingthe subpoena provisionsof Section512(h). -10-

B.

The DMCA's Procedure$For Issuing A SubpoenaTo Verizon Were Met In This Case.

Under the DMCA, a copyright owner, or its agent, must provide three things in order for a

subpoena issue:a notification described subsection to in (c)(3)(A), a proposed subpoena the in
proper fonn, and "a sworn declarationto the effect that the purpose for which the subpoena sought is

is to obtain the identity of an allegedinfringer andthat suchinfonnarionwill only be usedfor the pmpose protectingrightsunderthis title," § 512(h)(2Xc).RIAA met all threerequirements. of RIAA provideda proposed subpoena the properform, which wasissuedby the District in
Court clerk, aswell as a declaration addressingthe issuesdiscussedin the statute. SeeAttaclunents

A & C. RIM alsoprovideda notificationincluding all of the elements § 512(cX3)(A). See of Attachment RIAA's notification included,amongother things, a list of literally hundreds B. of
infringing works that were being offered for download by Verizon's subscriberand the identification of the specific location from which the alleged infringer was operating - anIP address a Verlzon of subscriber. From that.IP address,the alleged infringer is using accessobtained through Verlzon' s

networkto sendandreceiveunauthorized copiesof copyrighted material.The infornlationRIAA provided tells Verizon exactly whereto find this computerand identifies preciselywhere the
infringing material is located.4Verizon needsno additional information to identify this subscriber. The Subpoenaseeksonly a minimum amountof infonnation. It merely requiresthat Verizon

provide identifying information.suchas a name,address, telephone and number. Verizon can
comply with the subpoenain a matter of seconds. But unless it does so, RIAA memberswill have

4RlAA alsoprovidedthe dateandtime of its evidence infringing activity so that there of canbe no mistakeasto who the infringeractuallyis (suchas.if a differentusersubsequently obtained IF address hadbeenusedfor infringement). the that ~11.

no ability to seekredress the infringing activity that Verizondoesnot - andcannot- deny is for occurringover its netWork.

c.

The DMCA RequiresVerizon Expeditiously ProduceThe Information To Requested The Subpoena. In

Upon receipt of a subpoenaand theno.tification.undersubsection(c)(3)(A), disclosureof the requestedinfonnation is not optional. Under the DMCA, the serviceprovider "shall expeditiously disclose to the copyright owner or personauthorizedby the copyright owner the infonnation required by the subpoena.notwithstanding any other provision of law and regardless of whether the service

provider responds the notification." § S12(h)(S) to (emphasis added). The words of the statute
could not be more explicit. Thus, regardlessof whether Verizon could itselfbe liable for copyright

infringementor regardless whetherVerizon must take other stepsin order to maintain the of
limitations on liability in the safeharbor provisions of theDMCA. V erizonmust nonetheless comply with the Subpoena. Moreover. pursuant to Rule 45(c)(2)(B) and Section 512(h)(6), this Court has

the authorityto enforcethe termsof the Subpoena compelVcnzon to producethe requested and infomlation. Compliancewith the subpoena will requireonly a simple and ministerial act by

Verizon,puttingvirtually no burdenon them. The Court should order Verizon to comply
immediatelyin orderto allow the rightful cop}rlght ownersthe opportunityto bring a halt to the unlawful dissemination their copyrighted of works.

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u.

NONE OF THE ARGUMENTS RAISED BY VERIZON

.roS'1'l.II'~

REFUSING TO

COMPLY WITH A SUBPOENAVALIDL Y ISSUED BY THIS COURT.
In its letter to RIM, Verizon raisesa number of issuesthat it claimsjustify ignoring a validly

issued subpoena. Attachment All ofVerizon's arguments See D. stemfrom its interpretation the of
various safeharbor provisions in the DMCA, but thoseprovisions all of which relateto Verizon's own liability for copyright infringement - have nothing to do with Verizon's obligation to respond to a subpoenaissuedpursuantto Section S12(h). Moreover, all ofVerizon's argumentslack merit.

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Limitation of Liability under Section512(a).Verizonargues because believes that, it that
it qualifies for a safe harbor under Section 512(a),5it is entitled to ignore a subpoenaissuedunder Section 512(h). Verizon Letter at 2. That c!aim finds no support in the text 0f the statuteand makes

no sense.A selVice provideris plainly obligatedto complywith a subpoena evenif it canvalidly claim the protectionof a DMCA safeharbor.
"

.

Whether a serviceprovider qualifies for the safeharbor in Section S12(a) has nothing to do

with whethera providermust comply with a subpoena issuedby a court under Section512(h). Thoseprovisionsare completelyunrelated.SectionS12(a), conjunctionwith §§ Sl2(b) - (d), in
defines the activitie$ orfunctions of service providers which may qualify such service providers for

potential safe harbof$from being held .'liable for monetaryrelief. Of, exceptas provided in subsection for injunctiveor otherequitable (j), relief,for infringement copyright." ~ 512(a); S of Rep.105-190 55. Section512(a)th~on1yprotectsa service at providerftom liability for its own

'RlAA takes issuewith Verizon's claim that it falls within the tcrms of the safe harbor defined in Section S12(a). That issue,however, is for another day becauseit is wholly irrelevant to Verizon's obligation to respond to a subpoenaissued under Section S12(b).

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actionsthat may constitute cop)Tight infringement, notfrom respondingto a valid subpoenaseeking information about another party's alleged copyright infringement. In contrasttSection S12(h) appliesto all serviceproviders. whether or not they fall within the safe harbor provisions of subsection (a)-(d), and fCiardless of what functions the service provider

is perfOllning. The safeharborprovisionsof subsections (aHd) and the subpoena authority of subsection eachcreatetools to combatpiracy- the folmer by encouragingservice providers to (h)
cooperatewith copyright owners by disabling access infringing material in exchangefor receiving to liabilitypl'Otection and the latter by giving copyright ownersthe ability to uncover information from serviceprovidCli that will allow them to pursueappropriateaction againstdirect infringers. To read the safeharbors as restricting the scopeof the subpoena provision would make hashof the statutory

design.

SubsectionS12(c)(3)(A) NoticeProvision. Verizon also contendsthat it need not comply with SectionS12(h)because provision is limited to situations which a serviceprovideris that in
storing infringing material on its network. In Verizon .s view, where asis believedto be the case here

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the allegedinfringer maintainsfiles on his or her own computer.rather tlw1 on servers

owned and controlled by the service provider. and usesthe serviceprovidats network to distn"bute the inftinging material, a subpoenaunder Section 512(h) can never issue. Verizon Letter at 2. That argument- which seeksto transfonn the notice provisions ofsubsectiOD (c)(3XA) into a substantive limitation that would evisceratethe subpoenaauthority createdunder Section 512(11) has no basis in the statutory text and is antithetical to the policies Congresssought to advancein the DMCA.

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As an initial matter.Verizon erroneously assumes a copyrightownercan detennine mat
whether the infringing material that is being offered fur download resides on a computer or server owned andoperatedby Verizon. SeeVerizon Letter at 2-3. But only Verizon knows what computer and what subscriberis at the IP addressthat is offering unauthorizedmaterial fur download; indeed,

only VerizonknowswhetherVerlzonitself ownsor controlsthatcomputez:-RIAAknowsonly the
unique IP addressof the computer; it provided that information in its Notification Letter to Verizon. Verizon's suggestionthat RIM should provide more specific infonnation ignoresthe fact that only

Verlzon is in possession the infomlationthat is soughtby the Subpoena that it unilaterally of and claimsit shouldnot haveto provide. More importantly,however,the text of the DMCA refutesVerizon's statutoryarguments.
Section 5 12(h) does not limit subpoenas only to situations where the allegedly infringing material

physicallyresideson the serviceproviderstnetwork. SectionS12(h)authorizes subpoenas ""for
identification of an alleged infringer" and saysnothing about where the alleged infringing material

resides.§ 512(h)(1).In~

disclosure mandatory is "notwithstanding otherprovisionoflaw." any

§ S12(hX5). This broadreadingis confumedby the legislativehistory, which makesclearthat
Section 512(h) was designedto permit "identification of allegedinfringers who areusersof a service

providers'system network." H. Rep.No. 105-551 at 60. That is exactlywhat RIAA seeks or (D) here.
Further, nothing in subsection512(c)(3)(A) suggeststhat the notification provisions create

substantivelimitations on the scopeof any other section.Congress explainedthat subsection
(c)(3)(A) establishes "proced~,"

not substantivelimitations. H. Rep.No.1 OS-S51 at 55. The (II)

contours of the safeharbors and any limitations on the subpoenaauthority are to be fouud in those
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subsections, in the notification provisionsto which they all refer. Moreover,Congress not made
clear that strict compliance with the notification provisionswas not required; substantialcompliance

was sufficient to trigger all of dle setViceproviders' obligations under the DMCA.

See

§ S12(c)(3)(A). CongTCSs expected serviceproviders and copyright owners "will comply with the functional requirementsof the notification provisions." H. Rep. No.1 OS-551 at 56. So long as (ll)

copyrightownersfurnish infonnation that would assistserviceproviders"in understanding the natureand scopeof the infringement"and in taking appropriate action,suchas identifying the infringing user or disabling access infringing material,the copyrightowner bas fulfilled its to obligations./d.
Finally t the two snippetsof statutorylanguage Verizon cites for its claim do not remotely that support its argument Verizon suggests subsectionS12(c)(3XA) appliesonly to situations where that

the allegedinfringementinvolves "material that resideson a systemor network controlled or operated or for fa] serviceprovider," VerizonLetterat 2 (emphasis bracketin original). by and That language,quoted and cmphasized Verlzon's letter, does not appearin subsection in
512(c)(3)(A) or in Section 512(h). Rather.that language appears subsectionS in 12(cXl) and defines the terDlSof one of the safeharbor provisions. Thus unmasked,Verizon' s argumentis truly bizane

- in essence,V crizon arguesthat becauseboth Section S12(h) and subsectionS12(c)(l)
Section512(h). Thatmakesno sense.

refermce

the notificationprovisionsof(c)(3)(A), the limitationsof subsection 512(cXl) shouldbe readinto

V enzon'8 attemptto graft one of the limitationsof the safeharborprovisionsonto the
8Ubpoenaauthority ignores that the DMCA createsseparateand distinct obliptions on service providers - they must respondto valid subpoenas an~ if they wish to Im13in within the safe harbor

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to the notification").
Verizon also seeksto dressup the samepoint in different clothing by claiming that, because

..

VenzonLetterat 3. As an initial matter, Verlzon's claim that it cannot locate the material rings hollow.

of."the material that is claimed to be infringing or to be the subject of infringing activitY and that is to be removed or accessto which is to be disabled, and information reasonablysufficient to pel'IIlit

can the service provider to locate the material"} (emphasisadded). That Verizonunquestionably do, oncea copyrightownerprovides- asRIAA has- the IP address the inftinger. of

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Moreover, the DMCA expresslyprovides that subsection512(cX3)(A)"snotification provisionsapply in myriad situations, includingthosein which the infringing material doesnot resideon the serviceprovider'snetwork. Subsection 512(c)(3)(A)providesthe generai-elements
of notice that are required for three of the safeharbors- subsections(b), (c). and (d), as well as the safeharbor for educationalinstitutions (subsection(g»

- and for the subpoena..provision Section of

Sl2(h). Under subsection(d), a copyright owner may give notice pursuant to s.ubsection (c)(3)(A)

where infringing material is not on the provider'snetworkbut is accessible through use of an
infomlation location tool or searchengine. See§ 512(d)(3). Similarly, subsection(c)(3)(A) notice

is applicablewherethe cop)right owneris notifyina a serviceprovider that it has or is caching infringing material, whether or not that material is still being stored by the provider. See § 512(b)(2)(E).The draftersof the DMCA wouldnot havereferenced notification provisions the
of subsection(c)(3) in eachof thesesubsections well asthe subpoenaprovision found at Section (as S12(h» if they were not a freestandingprovision defining the elementsof effective notice, applying with equal force to situations where the seIViceprovider was not storing infringing files (as alleged

necessary Vcrizon).6 by

6verizon'sletterraises additionalafglDIlent is not an objectionto the subpoena. one that
See Verizon Letter at 3. ft 4-5. V~n

arguesthat it is not required to tenninate the subscriber's

access the hltemct underS~tion 512(i).Id. at 3. Onceagain.whetheror not that obligation to existsis irrelevantto whetherVerizonis obligedto revealto thecopyrightownerthe nameof a personpursuant a valid subpoena. to -18-

CONCLUSION
For the foregoing reasons.RIAA respectfully ~uests that the Court enteranorder requiring

Verizonto complywith the subpoena issuedby this Courton July 24, 2002,andgrantsuchother
relief as is just and appropriate

Respectfully 8ubmitted,

BY:-+~
Of Counsel:
MatthewJ- Oppenheim Stanley Pierre-Louis RECORDINGINDUSTRY ASSOCIAnON OF AMERICA
1330 Connecticut Ave., N. W.

~B

~.f4 p A-;,;"

Ste.300 Washington. 20036 D.C.

DonaldB. Vem11i. D.C. BarNo. 420434 Jr., Thomas Perrelli,D.C. BarNo. 438929 J. CynthiaJ. Robertson, D.C. BarNo. 472981 JENNER& BLOCK, u..c 601Thirteenth StI'cet,NW, Suite 1200 Washington, D.C. 20005 Phone: (202) 639-6000 Fax: (202)639-6066 Attorneysfor the Recording hldustryAssociation of America

Dated:August20, 2002

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