subpoena power in Section 512(h) was unconstitutional and that the issues raised by the amici
curiae had not been fully briefed by the RIAA.^1488 In a subsequent ruling, the district court
issued a more elaborated opinion on a number of constitutional challenges to the subpoena power
in Section 512(h) raised by Verizon and amici curiae and again rejected those challenges.^1489
On appeal, the D.C. Circuit reversed.^1490 The appellate court held, based on both the
terms of Section 512(h) and its overall structure that a subpoena may be issued only to an ISP
engaged in storing on its servers, or linking to, material that is infringing or the subject of
infringing activity, and not to an ISP acting only as a conduit for data transferred between two
Internet users. With respect to the language of Section 512(h) itself, the court noted that Section
512(h)(4) makes satisfaction of the notification requirement of Section 512(c)(3)(A) a condition
precedent to issuance of a subpoena, which notification requirement must identify and provide
information sufficient to locate infringing material that is to be removed or access to which is to
be disabled. The court held that an ISP that is not storing the allegedly infringing material on its
servers cannot “remove” or “disable access to” the infringing material no matter what
information the copyright owner may provide.^1491
The RIAA contended that an ISP can “disable access” to infringing material, even when
it is providing only conduit functions, by terminating the offending subscriber’s Internet account.
The court rejected this argument, noting that the DMCA, in Sections 512(j)(1)(A)(i) and
512(j)(1)(A)(ii), sets up distinct statutory remedies in the form of injunctions against providing
access to infringing material and injunctions against providing access to a subscriber who is
engaged in infringing activity.^1492 “These distinct statutory remedies establish that terminating a
subscriber’s account is not the same as removing or disabling access by others to the infringing
material resident on the subscriber’s computer.”^1493 The court further noted that the RIAA’s
notification had identified absolutely no material Verizon could remove or access to which it
could disable, which suggested that Section 512(c)(3)(A) “concerns means of infringement other
than P2P file sharing.”^1494
Finally, the court rejected the RIAA’s argument that the definition of “Service Provider”
in Section 512(k)(1)(B) made Section 512(h) applicable to an ISP regardless what function it
performed with respect to the infringing material – transmission per Section 512(a), caching per
(^1488) Id. at 41-44.
(^1489) In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244, 257-68 (D.D.C. 2003). The court also rejected
Verizon’s argument that Section 512(h) violates Art. III of the Constitution because it authorizes federal courts
to issue binding process in the absence of a pending case or controversy. Id. at 248-57.
(^1490) Recording Industry Ass’n of Am. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003), cert.
denied, 543 U.S. 924 (2004).
(^1491) Id. at 1235.
(^1492) Id.
(^1493) Id.
(^1494) Id. at 1236.