Section 512(b), hosting per Section 512(c), or locating it per Section 512(d).^1495 The court stated
that this argument “borders upon the silly. ... Define all the world as an ISP if you like, the
validity of a § 512(h) subpoena still depends upon the copyright holder having given the ISP,
however defined, a notification effective under § 512(c)(3)(A). And as we have seen, any notice
to an ISP concerning its activity as a mere conduit does not satisfy the condition of §
512(c)(3)(A)(iii) and is therefore ineffective.”^1496
The court bolstered its conclusion by pointing to the overall structure of Section 512(h),
noting that the presence in Section 512(h) of three separate references to Section 512(c) and the
absence of any reference to Section 512(a) suggested the subpoena power of Section 512(h)
applies only to ISPs engaged in storing copyrighted material and not to those engaged solely in
transmitting it on behalf of others.^1497 The court rejected, however, Verizon’s suggestion that the
subpoena power could not apply to ISPs engaged in caching or linking functions under Sections
512(b) and (d). Noting that caching and linking were “storage functions,” the court ruled that
“the cross-references to § 512(c)(3) in §§ 512(b)-(d) demonstrate that § 512(h) applies to an ISP
storing infringing material on its servers in any capacity – whether as a temporary cache of a web
page created by the ISP per § 512(b), as a web site stored on the ISP’s server per § 512(c), or as
an information locating tool hosted by the ISP per § 512(d) – and does not apply to an ISP
routing infringing material to or from a personal computer owned and used by a subscriber.”^1498
Accordingly, the court remanded the case to the district court with instructions to vacate
its order enforcing the RIAA’s subpoena and to grant Verizon’s motion to quash the
subpoena.^1499
(3) The Charter Communications LitigationIn Oct. of 2003, Charter Communications filed a motion to quash nearly 150 subpoenas
filed by the RIAA as part of its aggressive campaign against peer-to-peer file sharing of music
files. Charter challenged the subpoenas on a number of grounds. First, Charter argued that the
subpoenas, which demanded compliance within seven days, did not afford a reasonable or
feasible time period for Charter to comply with its duties under the federal Cable
Communications Act (CCA) to notify subscribers in advance of its compliance. Charter also
argued that the CCA allows the turning over of subscribers’ information only where a court order
offered evidence that the subscribers were reasonably suspected of engaging in criminal activity,
and where the subject of the information had a chance to appear and contest the validity of the
claim.^1500
(^1495) Id.
(^1496) Id.
(^1497) Id. at 1236-37.
(^1498) Id. at 1237.
(^1499) Id. at 1239.
(^1500) “Charter Communications Files Suit, Seeks to Quash RIAA File-Sharing Subpoenas,” BNA’s Patent,
Trademark & Copyright Journal (Oct. 15, 2003) at 963.