(to the extent practicable) by the provisions of the Federal Rules of Civil Procedure dealing with
subpoenas duces tecum.^1478
(1) Jurisdictional IssuesThe issue of where subpoenas under Section 512(h) must be sought and where they can
be served was tested in two lawsuits brought by Massachusetts universities against the RIAA,
Massachusetts Institute of Technology v. RIAA^1479 and Boston College v. RIAA.^1480 In those
cases, the universities challenged the service in Massachusetts of Section 512(h) subpoenas
issued by a federal district court in Washington, D.C. The court ruled that Fed. R. Civ. P.
45(a)(2) and (b)(2), which require a subpoena to issue from the district in which the production is
to be made, do not permit a Section 512(h) subpoena for production issued in Washington, D.C.
to be validly served in Massachusetts.^1481
The RIAA contended that service of the subpoenas was proper because of language
within the DMCA that the RIAA contended trumps Fed. R. Civ. P. 45. Specifically, the RIAA
pointed to Section 512(h)(1), which authorizes a copyright owner to request the clerk of “any”
U.S. district court to issue a subpoena. Second, Section 512(h)(5) requires the service provider
to disclose the requested information “notwithstanding any other provision of law.” Third, while
Section 512(h)(6) provides that the rules regarding service of subpoenas will govern to the
“greatest extent practicable,” that provision also contains an important carve out: “unless
otherwise provided by this section.” The court rejected the RIAA’s arguments, ruling that
Section 512(h) does not trump the ordinary rules regarding service of subpoenas under the
Federal Rules of Civil Procedure.^1482
(2) RIAA v. Verizon Internet ServicesThe scope of Section 512(h) was first tested in the case of In re Verizon Internet Services,
Inc.^1483 In that case, the Recording Industry Association of America (RIAA) served a subpoena
under Section 512(h) on Verizon Internet Services seeking identifying information about an
anonymous copyright infringer allegedly using Verizon’s network to download copyrighted
songs through peer-to-peer software provided by Kazaa. Along with the subpoena, RIAA
provided Verizon with a list of more than 600 files allegedly downloaded by the user on one day.
The subpoena included the user’s IP address and the time and date when the songs were
(^1478) Id. § 512(h)(6).
(^1479) 1:03-MC-10209-JLT (D. Mass. Aug. 7, 2003).
(^1480) 1:03-MC-10210-JLT (D. Mass. Aug. 7, 2003).
(^1481) “District of Columbia Court Lacks Authority to Issue DMCA Subpoenas to Boston Schools,” BNA’s Patent,
Trademark & Copyright Journal (Aug. 15, 2003) at 458.
(^1482) Id.
(^1483) 240 F. Supp. 2d 24 (D.D.C. 2003).