00604-20040202 petition rehearing

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TABLE OF CONTENTSTABLE OF AUTHORITIES .......................................................................................................... iiARGUMENT ................................................................................................................................... 1I. The Panel's Decision Involves a Question of Exceptional Importance ............................... 1II. The Panel Misinterpreted 512(h) ...................................................................................... 9CONCLUSION .............................................................................................................................. 15


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TABLE OF AUTHORITIES*CASES

Alabama Power Co. v. EPA, 40 F.3d 450 (D.C. Cir. 1994) .......................................................... 12Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ........................ 9Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) ............................... 10Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ........................................... 12McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991) ................................................ 12NaturalResources Defense Council, Inc. v. EPA, 907 F.2d 1146 (D.C. Cir. 1990) ..................... 10

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) .............................................................................. 5Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) ....................................... 7Playboy Enterprises, Inc. v. Russ Hardenbaugh, Inc., 982 F. Supp. 503 (N.D. Ohio 1997) .......... 7Religious Technology Center v. Netcom On-line Communication Services, Inc., 907 F.

Supp. 1361 (N.D. Cal. 1995) ......................................................................................... 7Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994) .......................................... 7

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ................................. 9Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ...................................................... 9Tyler v. Cain, 533 U.S. 656 (2001) ................................................................................................ 11United States v. Granderson, 511 U.S. 39 (1994) ......................................................................... 13United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) ....................................................................... 11United States v. Stowe, No. 96C2702, 1996 WL 467238 (N.D. Ill. Aug. 15, 1996) ....................... 7United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) ..................................................................... 7Utah v. Evans, 536 U.S. 452 (2002) .............................................................................................. 12In re Verizon Internet Services Inc., 240 F. Supp. 2d 24 (D.D.C. 2003) ......................... 4, 9, 10, 14

*Authorities upon which we chiefly rely are marked with asterisks.

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STATUTES"17 U.S.C. 512 .................................................................................................................... passim17 U.S.C. 512(a) ................................................................................................................. 2, 5, 1317 U.S.C. 512(b) ................................................................................................................. 2, 3, 1317 U.S.C. 512(c) ................................................................................................................. passim17 U.S.C. 512(d) ................................................................................................................. 2, 3, 13"17 U.S.C. 512(h) ............................................................................................................... passim17 U.S.C. 5120) ...................................................................................................................... 5, 1217 U.S.C. 5120) ............................................................................................................................ 517 U.S.C. 512(k) ......................................................................................................................... 1217U.S.C. 512(n) ......................................................................................................................... 13

LEGISLATIVE MATERIALH. Rep. No. 105-551(II) (1998) ..................................................................................................... 14S. Rep. No. 105-190 (1998) ............................................................................................. 1, 2, 13, 14The Copyright Infringement Liability of Online and Internet Service Providers: Hearingbefore the Senate Committee on the Judiciary, 105th Cong. (Sept. 4, 1997) ................ 5Copyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act: Hearing Before

the Subcomm. on Courts and Intellectual Property of the House Comm. on theJudiciary, 105th Cong. (Sept. 11, 1997) ................................................................ 6, 7, 8Nil Copyright Protection Act of 1995 (Part II): Hearing Before the Subcomm. on Courts

and Intellectual Property of the House Comm. on the Judiciary, 104th Cong.(Feb. 7-8, 1996) .......................................................................................................... 6, 8Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts and

Intellectual Property of the House Comm. on the Judiciary, 105th Cong.(Sept. 16-17, 1997) ........................................................................................................ 6Statement by Marybeth Peters, The Register of Copyrights, Before the Senate Comm. on

the Judiciary, 108th Cong. (Sept. 9, 2003) available athttp://www.copyright.gov/docs/regstat090903.html ..................................................... 1

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MISCELLANEOUSMark Eckenweiler & Benjamin Wittes, Cyberspace's Lingua Franca, Legal Times, Jan.23, 1995.......................................................................................................................... 7Andrew Leonard, Mutiny on the Net, Salon, March 1998, available at

http://archive.salon.com/21 st/feature/1998/03/cov_20feature.html .............................. 7Pew Internet & American Life Project, The Impact of Recording Suite Against Music

File Swappers (Jan. 2004) at http://www.pewinternet.org/reports/pdfs/PIP_File_Swapping_Memo_0104.pdf ........................................................................... 1

Webster's Third New International Dictionary (1993) ................................................................. 12

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The Recording Industry Association of America ("RIAA") respectfully submits thispetition for panel rehearing or rehearing en banc pursuant to Federal Rules of AppellateProcedure 35 and 40. RIAA seeks further review because this case involves a question ofexceptional importance under the Digital Millennium Copyright Act ("DMCA"). In a case offirst impression, the panel sharply restricted the scope of the subpoena authority Congressconferred in 17 U.S.C. 512(h), rendering that authority useless as a practical matter anddefeating one of the essential objectives of the DMCA. The panel's misreading of the statutorytext produced a result that is irreconcilable with the Act's overall structure and purposes - and

that flatly contradicts the position of the Copyright Office of the United States. 1 If leftundisturbed, the decision threatens to curtail efforts by the recording industry to combat Internetpiracy that is decimating the industry - efforts that were just beginning to bear fruit.2

ARGUMENTI. The Panel's Decision Involves a Question of Exceptional Importance.

Congress enacted the DMCA to combat the emerging reality of"massive piracy" ofcopyrighted works on the Internet. S. Rep. No. 105-190, at 8 (1998) ("S. Rep."). Congress wasconcerned that this piracy would hobble the Internet for two reasons: (1) Internet serviceproviders ("ISPs") would refrain from investing because of the threat of substantial liability forinfringement committed by their subscribers, and (2) copyright owners would hesitate to makeworks available online because of the ease with which digital works can be pirated. Icl. Title II

of the DMCA, codified at 17U.S.C. 512, addresses both concerns. Section 512 confers upon1See Statement by Marybeth Peters, The Register of Copyrights, Before the Senate Comm. onthe Judiciary, 108th Cong. (Sept. 9, 2003) (http://www.copyright.gov/docs/regstat090903.html).2See Pew Internet &American Life Project, The Impact of Recording Industry Suits AgainstMusic File Swappers (Jan. 2004) (reporting that the number of Americans downloading musicfiles dropped by half since the recording industry began filings law suits against individualinfringers) (http://www.pewintemet.org/reports/pdfs/PIP_File_Swapping_Memo_0104.pdf).


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ISPs certain limitations on liability, the terms of which vary according to the function the ISPperforms. 512(a)-(d). In exchange, Congress required ISPs to cooperate with copyrightowners to combat piracy and act swiftly when notified of infringement being committed by usersof their network. See S. Rep. at 40.

The core of the congressional bargain struck in 512 is that copyright owners shouldseek redress in the first instance against infringing users, not ISPs, and that ISPs must facilitatecopyright owners' efforts to do so. For copyright owners to enforce their rights, however, theyneed to learn the identities of those infringing their copyrights on the Internet, usually

anonymously. To achieve the DMCA's goals, Congress authorized copyright owners to obtainthis information from ISPs. Thus, pursuant to 17 U.S.C. 512(h)(1), a copyright owner mayobtain from a district court clerk a "subpoena to a service provider for identification of an allegedinfringer" using the ISP's network. Section 512(h) also imposes numerous safeguards, requiringcopyright owners to specify their claims of infringement, limiting the information that may beobtained by means of the subpoena, and restricting the use of information obtained by thecopyright owner. See 17U.S.C. 512(h)(2)(A), (h)(3) & (h)(2)(C).

Section 512(h) subpoenas are critical to copyright owners' efforts to protect their rights inthe Internet age. As the panel acknowledged, "[t]he stakes are large for the music, motionpicture, and software industries." RIAA v. Verizon Internet Servs., Inc., No. 03-7015 at 15 (D.C.Cir. Dec. 19, 2003) ("Slip op."). More than two billion infringing music files are downloaded

each month on peer-to-peer ("P2P") systems such as KaZaA. See RIAA Br. at 2. This massivepiracy has cost the music industry billions in lost revenues. Id. The infringement takes place inbroad daylight - every day millions of infringers upload and download copyrighted files on P2Pnetworks, shielded by the anonymity of an alias and an Internet Protocol ("IP") address.

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Copyright owners can observe this infringement and can ascertain the IP addresses of infringers.Only ISPs, however, can identify the actual persons committing infringement. Absent disclosureby the ISP, copyright owners are powerless to take action.

This appeal arises out of RIAA's effort to use 512(h) subpoenas to obtain the identitiesof two individuals using Verizon's network to disseminate hundreds of copyrighted workswithout authorization. Id. at 6-7 (citing J.A. 81,233-34). Reversing the district court, the panelheld that Congress authorized 512(h) subpoenas only when infringers store infringing materialon an ISP's network, and not when (as is often the case in P2P networks) such material is stored

on the subscribers' home computers and disseminated over the ISP's network, i.e., when the ISPis acting as a mere "conduit." Slip. op. at 7. The panel identified no direct instruction fromCongress restricting the subpoena authority in that manner. Rather, the panel limited 512(h) onthe basis of an inference drawn from a cross-reference in 512(h) to another subsection of 512.

As will be shown infra, the panel's interpretation rests on fundamental errors of statutoryconstruction. The panel's decision is worthy of further review, however, not merely because itwas wrong but because the panel's errors will eviscerate 512(h), and with it the underlyingpurposes of 512. The panel authorized 512(h) subpoenas where the DMCA gives copyrightowners another remedy (seeking removal of the infringing material or links to the infringingmaterial stored on the ISP's network, see 512(b), (c), (d)), but eliminated their availabilitywhere they are needed most, i.e., where the copyright owner's only option for stopping the

infringement is a direct suit against the infringer. 3 Even worse, the limited subpoena power thepanel preserved is of little value. Typically, an ISP storing infringing material on a website or

3 If the ISP does not store, cache, or link to the infringing material, the copyright owner cannotbenefit from the "notice and take down" provisions contained in 512(b), (c) and (d) to stopongoing infringement.

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bulletin board does not know the identity of individuals who post infringing material; those ISPssimply post information sent by others. Only ISPs that provide the initial Internet access knowwho the infringer (the sender) is. Under the panel's interpretation, however, copyright ownerscan subpoena only ISPs that cannot identify the infringers, not the ISPs that can.

Because the vast majority of digital piracy involves P2P networks, the panel's misreadingof 512(h) will subvert the balanced objectives of the DMCA. Copyright owners will beprevented from asserting their rights directly against infringing users. At the same time, ISPswill benefit in two ways: they will profit handsomely from illegal downloading over high-end

broadband services, see RIAA Br. at 3 (noting that over half the capacity of broadband networksare consumed by P2P users), and will receive the DMCA's limitations on liability without theconcomitant obligation to do the most important thing they can do to stop infringement over theirnetworks - identify the infringers. Congress could not possibly have intended this result.

The district court found "no sound reason why Congress would enable a copyright ownerto obtain identifying information from a service provider storing infringing material on itssystem, but would not enable a copyright owner to obtain identifying information from a serviceprovider transmitting the material over its system." In re Verizon Internet Servs., Inc., 240 F.Supp. 2d 24, 35 (D.D.C. 2003). For its part, the panel never supplied any substantiveexplanation for this irrational result. Regardless of whether an ISP transmits or stores infringingmaterial, the damage to the copyright owner from the infringement is the same (irreparable), thesubscriber's conduct is the same (unlawful), and the burden on the ISP to identify the infringer isthe same (minimal). While there may be a rationale for Congress's decision to give conduit ISPsa broader limitation on liability than ISPs storing infringing material, there is no such rationalefor treating ISPs differently when it comes to identifying infringers. Id. at 35.

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The panel's only defense of its constricted reading is its claim that "the legislative historyof the DMCA betrays no awareness whatsoever that internet users might be able directly toexchange files containing copyrighted works." Slip op. at 14. Even if that assertion were correct(and it is not), it fails as a justification. At the insistence oflSPs, Congress drafted the DMCAbroadly to ensure that it would not be immediately outmoded by changes in technology. See TheCopyright Infringement Liability of Online and Internet Service Providers: Hearing before theSenate Comm. on the Judiciary, 105th Cong. 23, 25-26 (Sept. 4, 1997) (ISP testimonyadvocating for a statute drafted by "function" which would be more adaptable to technological

change). The whole point of the DMCA was to provide broad, enduring rules for the future, andthus to avoid the necessity of ongoing legislative revision. See generally, PGA Tour, Inc. v.Martin, 532 U.S. 661,689 (2001).

In any case, the text and legislative history of 512 refute the panel's assumption.Section 512(a) - the provision for which ISPs fought the hardest - was designed to covercertain situations in which the ISP serves only as a "conduit" for Internet users "directly...exchang[ing] files containing copyrighted works." Slip op. at 14. ISPs would not have fearedderivative liability in these circumstances unless their subscribers were using the "conduit" tocommit infringement. Moreover, in 512(i), Congress conditioned the limitations of liability-including the 512(a) limitation for conduit functions that do not involve storage - on ISPsenforcing a policy of terminating the accounts of repeat infringers. Similarly, 512(j)

specifically provides for injunctive relief against ISPs to block infringement by subscribers evenwhere the infringing material resides on the subscriber's computer. These provisions presupposeusers "directly... exchang[ing]" copyrighted works over an ISP's conduit facilities.


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The legislative history similarly demonstrates that Congress contemplated, and legislatedagainst, infringing activity where materials are stored on subscribers' computers and merelytransmitted by ISPs. The legislative record is replete with concerns that individuals wouldengage in wide-ranging copyright infringement using the conduit facilities of ISPsfrom theirhome computers. The most obvious of those is e-mail, a technology in wide use when theDMCA was enacted in 1998. Congress heard testimony about the "growing use of 'blanket' e-mail messages" to commit copyright infringement and about a specific infringer using e-mail(and attachments thereto) to disseminate 150 copyrighted software programs. 4 One songwriter

explained to Congress the problems copyright owners faced from e-mail distribution systemsbecause ISPs had no obligation to reveal the identities of e-mail customers committing copyrightinfringement, absent a court order. 5

In this regard, the panel erred in contending that Congress was concerned only with FileTransfer Protocol ("FTP") sites and Bulletin Board Services ("BBS") stored on the systems ofISPs, and with rogue ISPs. Slip op. at 14. Congress knew in 1998 that FTP sites and BBSservices (precursors to P2P services) on home computers were engines of copyright piracy. 6 The

4 Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts andIntellectual Property of the House Comm. on the Judiciary, 105th Cong. 172, 175 (Sept. 16-171997) (statement of Ronald Dunn, President of the Information Industry Association); NIICopyright Protection Act of 1995 (Part 2)- Hearing Before the Subcomm. on Courts andIntellectual Property of the House Comm. on the Judiciary, 104th Cong. 84, 88 (Feb. 7-8, 1996)(statement of Garry L. McDaniels on behalf of the Software Publishers Association). See alsoCopyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act."Hearing Before the HouseSubcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 105thCong. 17-18 (Sept. 11, 1997) (statement of Kevin DiGregory, Deputy Attorney General,Department of Justice) (describing use of e-mail to commit infringement of software programs).5See Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts andIntellectual Property of the House Comm. on the Judiciary, 105th Cong. 156, 160 (Sept. 16-17,1997) (statement of Allee Willis, songwriter).6 The panel appears to have believed incorrectly that FTP sites and BBS sites resided only onservers maintained by ISPs. Slip op. at 14. Rather, many FTP and BBS sites were located on


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cases cited most prominently in hearings and in the House and Senate reports involved BBSservices operated from home computers. See, e.g., Religious Tech. Ctr. v. Netcom On-lineCommunication Servs., Inc., 907 F. Supp. 1361, 1365-66 (N.D. Cal. 1995) (describing BBSoperated at home and linked to the Internet by an ISP) (cited at S. Rep. at 19 n.20); PlayboyEnters., Inc. v. Frena, 839 F. Supp. 1552, 1555-56 (M.D. Fla. 1993) (BBS operated fromindividual's own computer) (cited at S. Rep. at 19 n.20); Sega Enters. Ltd. v.MAPHIA, 857 F.Supp. 679, 682 (N.D. Cal. 1994) (computer servers for infringing BBS located in defendant'sresidence); Playboy Enters., Inc. v. Russ Hardenbaugh, Inc., 982 F. Supp. 503,507 (N.D. Ohio

1997) (describing FBI seizure of BBS equipment from defendant's premises), z The Departmentof Justice testified concerning infringement committed from FTP and BBS sites run on homecomputers. See Copyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act: HearingBefore the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary,105th Cong. 17-18 (Sept. 11, 1997) (statement of Kevin DiGregory, Deputy Attorney General,Department of Justice). Indeed, the Department was already prosecuting criminal copyrightinfringers operating BBS services from their homes. See, e.g., United States v. Stowe, No.96C2702, 1996 WL 467238 at *1 (N.D. Ill. Aug. 15, 1996).

In all of these situations - well-known to Congress when it enacted the DMCA - only theconduit ISP that provides access to the Internet can identify the infringer. At least one major ISPrecognized this problem and proposed that, in exchange for limitations on liability, ISPs should

home computers. See Andrew Leonard, Mutiny on the Net, Salon, March 1998, available athttp://archive.salon.com/21 st/feature/1998/03/cov_20feature.html (FTP software "allows anyonewith a computer and a modem to make [pirated music] files on their home computer accessibleto the rest of the Net"); Mark Eckenweiler & Benjamin Wittes, Cyberspace's Lingua Franca,Legal Times, Jan. 23, 1995 ("[m]any BBS's are operated by hobbyists off of home computers").7 By 1998, BBS services operated out of people's homes were a also a haven for obscenity andchild pornography. See, e.g., United States v. Thomas, 74 F.3d 701,705 (6th Cir. 1996)(describing obscene bulletin board operated from home since 1991).


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be required, "[i]n those cases where the allegedly infringing content is not on facilities controlledby the lISP] .... [to] take[] reasonable steps to assist the copyright owner in identifying the partythat does control the hosting facility (upon receipt of a subpoena if necessary)." Nil CopyrightProtection Act of 1995: Hearing Before the Subcomm. on Courts and Intellectual Property of theHouse. Comm. on the Judiciary, 104th Cong. 261 (Feb. 7-8, 1996) (testimony of Stephen M.Heaton, General Counsel of Compuserve, Inc.).

The overriding theme of the legislative record is that with the expanding power ofpersonal computers and rapidly increasing bandwidth, anyone would be able to perpetrate

massive copyright infringement. See Copyright Piracy, and H.R. 2265, The No Electronic Theft(NET) Act: Hearing before the Subcommittee on Courts and Intellectual Property of the HouseCommittee on the Judiciary, 105th Cong. (Sept. 11, 1997) (Statement of Marybeth Peters,Register of Copyrights) (noting how "a disgruntled former employee, a dissatisfied customer,[or] an Internet user opposed to the fundamental concept of copyright law" can "inflicttremendous damage to the market for a copyrighted work"). The panel was thus fundamentallyin error in concluding that users "directly... exchang[ing]" copyright works (such as throughP2P infringement) was an unforeseen risk when Congress enacted the DMCA. Rather, Congressfully understood the crippling piracy that already beset the music industry (among others) andthat would only get worse. In the DMCA, Congress acted to give copyright owners the tools tostop such piracy, wherever the infringing material was stored. The panel's opinion strips

copyright owners of one of the most essential of these tools.Finally, in assessing the need for further review, it is important to recall that the ill effects

of the panel's decision are not confined to copyright owners. Enforcing copyright laws servesthe public interest, because "the ultimate aim" of the copyright laws is "to stimulate artistic


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creativity for the general public good." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,156 (1975); see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)Indeed, "it is virtually axiomatic that the public interest can only be served by upholdingcopyright protections and, correspondingly, preventing the misappropriation of the skills,creative energies, and resources which are invested in the protected work." Apple Computer,Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) (internal quotation andcitation omitted). The panel's decision threatens to allow literally billions of copyright violationsto continue. That is plainly a massive harm to the public interest.

II. The Panel Misinterpreted 512(h).Despite expressing regret for the harmful consequences of restricting 512(h), the panel

believed that the plain meaning of the statutory text compelled that result. The panel's reading,however, rests on fundamental errors of statutory construction. Once those errors are broughtinto focus, and the provisions on which the panel relied are read in light of the overall structureand purposes of the DMCA, it should be clear that the panel misread 512(h).

Section 512(h) does not impose any direct limitations on a copyright owner's ability toobtain DMCA subpoenas. As the district court observed, had Congress wanted to limit 512(h)to exclude conduit providers, it could easily have done so directly. Congress "could have statedsuch a limitation in subsection (h), or stated that subsection (h) does not apply to subsections (a),(b), or (d), or even have placed the subpoena authority itself within subsection (c). But Congress

did not do so." 240 F. Supp. 2d at 33. According to the panel, Congress chose the peculiarmechanism of an implied limitation based on the cross-reference to subsection (c)(3)(A).

Section 512(h)(2)(A) requires a copyright owner seeking a DMCA subpoena to providethe ISP with "a notification described in subsection (c)(3)(A)." Although a copyright owner


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seeking the identity of a subscriber using a P2P system can indisputably satisfy the otherprerequisites listed in 512(c)(3)(A), the panel concluded that one such prerequisite could neverbe satisfied - namely, "[i]dentification of the material that is claimed to be infringing.., and thatis to be removed or access to which is to be disabled, and information reasonably sufficient tolocate the material." 512(c)(3)(A)(iii). The panel believed that an "ISP can neither 'remove'nor 'disable access to' the infringing material" when it resides on a subscriber's computer ratherthan the ISP's network. Slip op. at 9-10. For this reason, and this reason alone, the panelconcluded that the cross-reference to 512(c)(3)(A) necessarily meant that 512(h) subpoenas

could not issue unless infringing material is stored on the ISP's network.The panel, however, erred in concluding that an ISP cannot "disable access" to material

residing on a subscriber's computer, and that error was the product of the panel's misuse of acanon of statutory construction. The panel rejected the district court's common-sense conclusionthat an ISP "certainly can disable access to the material by terminating the account altogether."240 F. Supp. 2d at 33 n.5. The panel noted that the DMCA uses the words "disable access" and"terminat[e]" distinctly elsewhere in 512 (specifically in 512(j), which governs the scope ofpermissible injunctions), and invoked the canon that different terms used in a statute arepresumed to have different meanings. Slip op. at 10.

In so doing, the panel ignored the possibility that the terms have distinct, yet overlappingmeanings. Yet that is a common occurrence. Courts have routinely recognized that even distinctstatutory terms can have an overlapping or common meaning. See, e.g., Natural Res. Def.Council Inc. v. EPA, 907 F.2d 1146, 1163 (D.C. Cir. 1990) (rejecting argument that termscannot have overlapping meaning where "the language of the definitions does not explicitlyindicate that they are to be mutually exclusive"); Carson Harbor Village, Ltd. v. Unocal Corp.,

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270 F.3d 863,882 (9th Cir. 2001) (concluding that "there is at least substantial overlap between"two terms used in the same statute and "reject[ing] the interpretation that the difference in thedefinitions requires us to... make the terms mutually exclusive"); United States v.Hill, 79 F.3d1477, 1482-83 (6th Cir. 1996) (noting that two terms in the same provision "must have differentmeanings," but concluding nonetheless "that there is considerable overlap between the twoterms"). As the Supreme Court has said, "Congress... is permitted to use synonyms in astatute." Tyler v. Cain, 533 U.S. 656, 664 (2001)

Thus, the canon that different terms in a statute are presumed to have different meaningsdoes not eliminate the need to give each term its ordinary meaning, even if those ordinarymeanings overlap to some extent. In the DMCA, Congress used terms that have such an overlapand did so purposefully. The objective of disabling access to infringing material is to prevent theoutside world from accessing that material. Terminating a subscriber's account achieves thatobjective. The DMCA authorizes the termination of a subscriber's account not simply (as thepanel appeared to believe, slip op. at 10) as a punishment to prevent the infringer from accessingthe Intemet to surf the World Wide Web. Rather, it is a remedy for the copyright owner toprevent others from gaining access to infringing material (either by accessing the subscriber'scomputer or receiving a transmission from the subscriber). Whether infringing material is storedon a website hosted by an ISP or on a home computer, in each case it is connected to the Internet(and to the world-at-large) by the ISP's facilities. In either situation, tuming offthe connection

to the Intemet prevents others from accessing it and thus "disables access" to the infringingmaterial. Indeed, were Verizon ever sued for copyright infringement arising out of the conductof a subscriber whose account it had terminated, it would certainly claim that terminating thesubscriber's account satisfied any obligation to disable access to the infringing material.

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Similarly, the panel was wrong in drawing from 5120) the proposition that disabling accessand terminating must have mutually exclusive meanings. If an ISP under an injunction to disableaccess to infringing material were to terminate the account of the subscriber, there is no doubtthe ISP would be in compliance with the injunction -thus proving that, as used in 512(j), theterms "disable access" and "terminat[e]" do not have mutually exclusive meanings.

The district court read the statute correctly. The court gave the phrases "disable access"and "terminat[e]" their ordinary meanings. To "disable" means to "make incapable orineffective." Webster's Third New International Dictionary 642 (1993). To "terminate" means

"to bring to an ending or cessation in time, sequence or continuity." See id. at 2359.Terminating a subscriber's account brings an end to the subscriber's connection to the Intemetand thus makes access to the subscriber's infringing material ineffective, i.e, disabled.

In contrast, the panel appears to have created its own specialized technical meaning foreach term. Congress, however, did not define "disable access" or "terminate a subscriber'saccount," and the terms do not have established meanings in the legal or computer fields.Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989); McDermott Int 'l,Inc. v. Wilander, 498 U.S. 337, 342 (1991). Nor did Congress place the terms in quotationmarks, refer to other authorities to define the terms, or indicate that the terms should be givenanything other than their ordinary meanings. See Utah v. Evans, 536 U.S. 452, 467 (2002);Alabama Power Co. v. EPA, 40 F.3d 450, 454 (D.C. Cir. 1994). Indeed, had Congress wanted togive the terms specialized meanings, it demonstrated elsewhere in 512 that it knew how to doso. See 512(i)(2) (defining "standard technical measures"), a

8One other term the Congress expressly defined - twice - is "service provider." 512(k)(1)(A)& (B). It is crystal clear that Congress intended the term "service provider" as used insubsection (h) to encompass ISPs providing "conduit" functions. See 512(k)(1)(B). As the

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In elevating its preferred canon above all others, the panel paid no heed to the "basicprinciple of statutory construction.., that where words in a statute are not defined, they must begiven their ordinary meaning." United States v. Granderson, 511 U.S. 39, 71 (1994) (internalquotation and citation omitted). Thus, wholly apart from any consideration of the DMCA'sstructure and purposes, the panel's reading of the text of 512 fails on its own terms.

The panel's opinion ignores the text, structure, and purposes of 512(h). Morefundamentally, in narrowly focusing on the cross-reference, the panel's interpretation isunmoored from the text and structure of 512(h), as well as the structure of 512 as a whole.

The sharp contrast between the broadly worded 512(h) and the narrowly craftedlimitations on liability in subsections (a)-(d) demonstrates that Congress did not intend 512(h)to be restricted to ISPs that perform specific functions. For each of subsections (a)-(d), Congressspecified the functions ISPs must be performing to qualify for a limitation on liability. Eachsubsection contains prefatory language that clearly and expressly defines a specific ISP function.See, e.g. 512(a)(1)-(5); 512(b)(1)(A)-(C). Indeed, Congress established an express rule ofconstruction making clear the function an ISP performs is critical to determining the applicationof 512(a)-(d). See 512(n); S. Rep. at 55 ("Section 512's limitations on liability are based onfunctions"). That rule of construction applies only to those subsections. S. Rep. at 55("Subsection [(n)] establishes a rule of construction applicable to subsections (a) through (d)").

Section 512(h) is starkly different. Congress drew no functional distinctions in 512(h)

and included no prefatory language limiting its application to ISPs performing particularfunctions. Section 512(h) by its terms applies broadly to all ISPs performing all functions. In

district court found, it is deserving of some weight that Congress went out of its way to definethe term broadly when it is used subsection (h). Although the panel characterized this argumentas "silly," slip op. at 11, it is hard to understand why Congress would have taken such a step if itintended that subsection (h) could never apply to conduit providers, as the panel concluded.

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this regard, 512(h) is similar to 512(i), which also applies to all ISPs, including conduit ISPs.Moreover, 512(n)'s rule of construction does not apply to 512(h). Congress could hardlyhave been more clear that 512(h) was not limited to ISPs performing a certain set of functions.

Nor did Congress anywhere suggest that it intended, as the panel concluded, thatsubsection (c)(3)(A) drastically restricts the scope of the subpoena provision. Congress madeclear that it intended subsection (c)(3)(A) to provide "procedures," not substantive limitations.See H. Rep. No. 105-55 (II) at 55 (1998). Subsection (c)(3)(A) is referenced in numeroussubsections within 512 as a mechanism for providing ISPs with sufficient information to

comply with their obligations. In none of those other subsections, however, does it create animplicit limitation on the scope of the subsection. Cf slip op. at 12-13 (discussing adoption ofsubsection (c)(3)(A) in subsections (b) and (d)). Nor should it here. The obvious purpose of 512(h)'s cross-reference to 512(c)(3)(A) is to provide a means by which the copyright ownerestablishes its bona tides and communicates the needed information to the ISP. Congress madeuse of the cross-reference for that reason, and not to limit the substantive scope of 512(h). 9

Moreover, the limitation that the panel imposed does not appear in subsection (c)(3)(A).The panel held that 512(h) applies solely when ISPs are storing infringing material. Nothing insubsection (c)(3)(A), however, mentions where infringing material is stored. That requirement isin an entirely different portion of subsection (c) that is not referenced in subsection (h). Theeffect of the panel's decision is to take a substantive limitation in subsection (c)(1), import that

9 One oddity of the panel's holding that a copyright owner cannot obtain a 512(h) subpoenabecause the ISP cannot "disable access" to infringing material is that 512(h) does not requirean ISP to disable access to any material at all. It merely requires the ISP to identify the infringer,something the ISP clearly can do. Indeed, the district court recognized the different purposefulfilled by subsection (h) and served by subsection (c)(3)(A) by holding that "[t]he requirementfor the notification is simply that it identify the infringing material to be removed, not thatremoval be effectuated." 240 F. Supp. 2d at 33 n.5.

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limitation by reference into the wholly procedural subsection (c)(3)(A) through the phrase"disable access," and then import it again by reference into subsection (h) - all without anysuggestion by Congress (in the text or legislative history) that it intended such a result.

Finally, the panel also ignored a provision that speaks directly to the issue in this case.The panel concluded that, because DMCA notifications to conduit ISPs would be ineffective inrequiring the ISP to disable access to infringing material, such notifications cannot form the basisfor a DMCA subpoena. Section 512(h), however, contemplated exactly this situation and makesclear that an ISP's obligation to identify infringers is distinct from the obligation imposed on

ISPs to disable access to infringing material upon receipt of a DMCA notification. Thus, an ISPmust respond to a DMCA subpoena "notwithstanding any other provision of law and regardlessof whether the service provider responds to the notification." 512(h)(5) (emphasis added).Congress thus envisioned that there would be situations, as here, in which an ISP need notrespond to a notice of infringement, but nonetheless must respond to the subpoena.

For all of these reasons, an examination of the text, structure, and purpose of the DMCAcompels the conclusion that 512(h) is not limited as the panel believed, but applies to all ISPsregardless of whether they are storing infringing material.

CONCLUSIONFor the foregoing reasons, RIAA respectfully requests that the Court grant rehearing or

rehearing en banc.

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Respectfully submitted,

Of Counsel: ,_. _,]'N'/,,._,,Donald BI Verrilli, Jr.,--D('._'_"--Baro. 420434

Matthew J. Oppenheim Thomas J. Perrelli, D.C. Bar No. 438929Stanley Pierre-Louis Jared O. Freedman, D.C. Bar No. 469679RECORDING INDUSTRY JENNER & BLOCK LLPASSOCIATION OF AMERICA 601 13th Street, NW, Suite 12001330 Connecticut Avenue, NW Washington, D.C. 20005Suite 300 Phone: (202) 639-6000Washington, D.C., 20036 Fax: (202) 639-6066

Date: February 2, 2004


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CERTIFICATE OF SERVICEI hereby certify that on this 2nd day of February, 2004, I caused copies of the foregoing

Recording Industry Association of America's Petition for Rehearing or Rehearing En Banc, to beserved via first-class U.S. Mail, postage prepaid, to the following:Andrew G. McBride John ThorneBruce G. Joseph Sarah B. DeutschDineen P. Wasylik VERIZON INTERNET SERVICES, INC.Kathryn L. Comerford 1515 N. Courthouse RoadWILEY REIN & FIELDING LLP 5 th Floor1776 K Street, NW Arlington, VA 22201Washington, DC 20006

Lawrence S. RobbinsPeter Keisler Kathryn S. ZeccaRoscoe C. Howard, Jr. ROBBINS, RUSSELL, ENGLERT,Douglas N. Letter ORSECK & UNTEREINER LLPScott R. McIntosh 1801 K Street, NWDEPARTMENT OF JUSTICE Suite 41120 Massachusetts Avenue, NW, 7th Floor Washington, DC 20006Washington, DC 20530

Megan E. GrayDavid E. Kendall GRAY MATTERSPaul B. Gaffney 1928 Calvert Street, NWManish K. Mital Suite 6WILLIAMS & CONNOLLY LLP Washington, DC 20009725 Twelfth Street, NWWashington, DC 20005 Joe Robert Caldwell, Jr.BAKER BOTTS LLPCindy A. Cohn The Warner BuildingELECTRONIC FRONTIER 1299 Pennsylvania Avenue, NWFOUNDATION Washington, DC 20004454 Shotwell StreetSan Francisco, CA 94110 Stewart Baker

STEPTOE & JOHNSON, LLPPaul Alan Levy 1330 Connecticut Avenue, NWPUBLIC CITIZEN LITIGATION GROUP Washington, DC 200361600 20th Street, NWWashington, DC 20009

Thomas J. i_/_elli - -_ _"


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CIRCUIT RULE 35(c) ADDENDUM


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INDEXRIAA v. Verizon Internet Services Inc., No. 03-7015 (D.C. Cir. Dec. 19, 2003) .................... Add. 1Certificate of Parties and Amici ............................................................................................ Add. 17Corporate Disclosure Statement ........................................................................................... Add. 22


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Notice: This opinion is subject to formal revision before publication in theFederal Reporter or U.S.App.D.C. Reports. Users are requested to notifythe Clerk of any formal errors in order that corrections may be madebefore the bound volumes goto press.

Uniteb State Court of ppeal[SFOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2003 Decided December 19, 2003No. 03-7015

RECORDING INDUSTRY ASSOCIATION OF AMERICA, _NC.,APPELLEE

V.

VERIZON INTERNET SERVICES, INC.,APPELLANT

Consolidatedwith03-7053

Appeals from the United States District Courtfor the District of Columbia(No. 02ms00323)(No. 03ms00040)

Andrew G.McBride argued the cause for appellant. Withhim on the briefs were John Thorne, Bruce G. Joseph, andBillsofcostsmust be filedwithin14days after entry ofjudgment.The court lookswith disfavoruponmotionsto filebills of costs outof time.

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2Dineen P. Wasylik. Deanne E. Maynard entered an appear-ance.Megan E. Gray, Lawrence S. Robbins, Alan Untereiner,

Christopher A. Hansen, Arthur B. Spitzer, and Cindy Cohnwere on the brief for amici curiae Alliance for Public Tech-nology, et al., in support of appellant.Donald B. Verrilli, Jr. argued the cause for appelleeRecording Industry Association of America, Inc. With himon the brief were Thomas J. Perrelli and Matthew J. Oppen-heim.Scott R. McIntosh, Attorney, U.S. Department of Justice,argued the cause for intervenor-appellee United States.With him on the brief were Roscoe C. Howard, Jr., U.S.

Attorney, and Douglas N. Letter, Attorney, U.S. Departmentof Justice.Paul B. Gaffney, Thomas G. Hentoff, Eric H. Smith,Patricia Polach, Ann Chaitovitz, Allan R. Adler, Joseph J.DiMonc_ Robert S. Giolito, and Chun T. Wright were on thebrief for amici curiae Motion Picture Association of America,

et al., in support of appellee Recording Industry Associationof America. David E. Kendall entered an appearance.Paul Alan Levy, Alan B. Morrison, and Allison M. Zievewere on the brief for amicus curiae Public Citizen.Before: GINSBURG,hief Judge, and ROBERTS,Circuit

Judge, and WILLIAMS,enior Circuit Judge.Opinion for the Court filed by Chief Judge GINSBURG.GINSBURG, Chief Judge: This case concerns the RecordingIndustry Association of America's use of the subpoena provi-sion of the Digital Millennium Copyright Act, 17 U.S.C. 512(h), to identify internet users the RIAA believes areinfringing the copyrights of its members. The RIAA servedtwo subpoenas upon Verizon Internet Services in order todiscover the names of two Verizon subscribers who appeared

to be trading large numbers of .rap3 files of copyrightedmusic via "peer-to-peer" (P2P) file sharing programs, such as

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4share digital .mp3 files of copyrighted recordings using P2Pcomputer programs such as KaZaA, Morpheus, Grokster, andeDonkey. See John Borland, File Swapping Shifts Up aGear (May 27, 2003), available at http://news.com.com/2100-1026-1009742.html, (last visited December 2, 2003). UnlikeNapster, which relied upon a centralized communication ar-chitecture to identify the .mp3 files available for download,the current generation of P2P file sharing programs allow aninternet user to search directly the .mp3 file libraries of otherusers; no web site is involved. See Douglas Lichtman &William Landes, Indirect Liability for Copyright Infringe-ment: An Economic Perspective, 16 HAaV. J. LAW& TECH.395, 403, 408--09 (2003). To date, owners of copyrights havenot been able to stop the use of these decentralized programs.See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,259 F. Supp. 2d 1029 (C.D. Cal. 2003) (holding Grokster notcontributorily liable for copyright infringement by users of itsP2P file sharing program).

The RIAA now has begun to direct its anti-infringementefforts against individual users of P2P file sharing programs.In order to pursue apparent infringers the RIAA needs to beable to identify the individuals who are sharing and tradingfiles using P2P programs. The RIAA can readily obtain thescreen name of an individual user, and using the InternetProtocol (IP) address associated with that screen name, cantrace the user to his ISP. Only the ISP, however, can linkthe IP address used to access a P2P program with the nameand address of a person - the ISP's customer - who can thenbe contacted or, if need be, sued by the RIAA.

The RIAA has used the subpoena provisions of 512(h) ofthe Digital Millennium Copyright Act (DMCA) to compelISPs to disclose the names of subscribers whom the RIAAhas reason to believe are infringing its members' copyrights.See 17 U.S.C. 512(h)(1) (copyright owner may "request theclerk of any United States district court to issue a subpoenato [an ISP] for identification of an alleged infringer"). SomeISPs have complied with the RIAA's 512(h) subpoenas andidentified the names of the subscribers sought by the RIAA.The RIAA has sent letters to and filed lawsuits against

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5several hundred such individuals, each of whom allegedlymade available for download by other users hundreds or insome cases even thousands of .mp3 files of copyrightedrecordings. Verizon refused to comply with and instead haschallenged the validity of the two 512(h) subpoenas it hasreceived.

A copyright owner (or its agent, such as the RIAA) mustfile three items along with its request that the Clerk of adistrict court issue a subpoena: (1) a "notification of claimedinfringement" identifying the copyrighted work(s) claimed tohave been infringed and the infringing material or activity,and providing information reasonably sufficient for the ISP tolocate the material, all as further specified in 5 512(c)(3)(A);(2) the proposed subpoena directed to the ISP; and (3) asworn declaration that the purpose of the subpoena is "toobtain the identity of an alleged infringer and that suchinformation will only be used for the purpose of protecting"rights under the copyright laws of the United States. 17U.S.C. 5 512(h)(2)(A)-(C). If the copyright owner's requestcontains all three items, then the Clerk "shall expeditiouslyissue and sign the proposed subpoena and return it to therequester for delivery to the [ISP]." 17 U.S.C. 5 512(h)(4).Upon receipt of the subpoena the ISP is "authorize[d] andorder[ed]" to disclose to the copyright owner the identity ofthe alleged infringer. See 17 U.S.C. 5 512(h)(3), (5).

On July 24, 2002 the RIAA served Verizon with a subpoenaissued pursuant to 5 512(h), seeking the identity of a sub-scriber whom the RIAA believed to be engaged in infringingactivity. The subpoena was for "information sufficient toidentify the alleged infringer of the sound recordings de-scribed in the attached notification." The "notification ofclaimed infringement" identified the IP address of the sub-scriber and about 800 sound files he offered for trading;expressed the RIAA's "good faith belief' the file sharingactivity of Verizon's subscriber constituted infringement of itsmembers' copyrights; and asked for Verizon's "immediateassistance in stopping this unauthorized activity." "Specifi-cally, we request that you remove or disable access to theinfringing sound files via your system."

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6When Verizon refused to disclose the name of its subscrib-

er, the RIAA filed a motion to compel production pursuant toFederal Rule of Civil Procedure 45(c)(2)(B) and 512(h)(6) ofthe Act. In opposition to that motion, Verizon argued 512(h) does not apply to an ISP acting merely as a conduitfor an individual using a P2P file sharing program to ex-change files. The district court rejected Verizon's argumentbased upon "the language and structure of the statute, asconfirmed by the purpose and history of the legislation," andordered Verizon to disclose to the RIAA the name of itssubscriber. In re Verizon Internet Servs., Inc., 240 F. Supp.2d 24, 45 (D.D.C. 2003) (Verizon I).

The RIAA then obtained another 512(h) subpoena direct-ed to Verizon. This time Verizon moved to quash the subpoe-ha, arguing that the district court, acting through the Clerk,lacked jurisdiction under Article III to issue the subpoenaand in the alternative that 512(h) violates the First Amend-ment. The district court rejected Verizon's constitutionalarguments, denied the motion to quash, and again orderedVerizon to disclose the identity of its subscriber. In reVerizon Internet Servs., Inc., 257 F. Supp. 2d 244, 247, 275(D.D.C. 2003) (Verizon II).

Verizon appealed both orders to this Court and we consoli-dated the two cases. As it did before the district court, theRIAA defends both the applicability of 512(h) to an ISPacting as a conduit for P2P file sharing and the constitutional-ity of 512(h). The United States has intervened solely todefend the constitutionality of the statute.

II. AnalysisThe court ordinarily reviews a district court's grant of a

motion to compel or denial of a motion to quash for abuse ofdiscretion. See, e.g., In re Sealed Case, 121 F.3d 729, 740(D.C. Cir. 1997). Here, however, Verizon contends the ordersof the district court were based upon errors of law, specifical-ly errors regarding the meaning of 512(h). Our review istherefore plenary. See In re Subpoena Served Upon the

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7Comptroller of the Currency, 967 F.2d 630, 633 (D.C. Cir.1992).

The issue is whether 512(h) applies to an ISP acting onlyas a conduit for data transferred between two internet users,such as persons sending and receiving e-mail or, as in thiscase, sharing P2P files. Verizon contends 512(h) does notauthorize the issuance of a subpoena to an ISP that transmitsinfringing material but does not store any such material on itsservers. The RIAA argues 512(h) on its face authorizesthe issuance of a subpoena to an "[internet] service provider"without regard to whether the ISP is acting as a conduit foruser-directed communications. We conclude from both theterms of 512(h) and the overall structure of 512 that, asVerizon contends, a subpoena may be issued only to an ISPengaged in storing on its servers material that is infringing orthe subject of infringing activity.A. Subsection 512(h) by its Terms

We begin our analysis, as always, with the text of thestatute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450(2002). Verizon's statutory arguments address the meaningof and interaction between 512(h) and 512(a)-(d). Havingalready discussed the general requirements of 512(h), wenow introduce 512(a)-(d).

Section 512 creates four safe harbors, each of which immu-nizes ISPs from liability for copyright infringement undercertain highly specified conditions. Subsection 512(a), enti-tled "Transitory digital network communications," provides asafe harbor "for infringement of copyright by reason of the[ISP's] transmitting, routing, or providing connections for"infringing material, subject to certain conditions, includingthat the transmission is initiated and directed by an internetuser. See 17 U.S.C. 512(a)(1)-(5). Subsection 512(b),"System caching," provides immunity from liability "for in-fringement of copyright by reason of the intermediate andtemporary storage of material on a system or network con-trolled or operated by or for the [ISP]," 512(b)(1), as longas certain conditions regarding the transmission and retrievalof the material created by the ISP are met. See 17 U.S.C. 512(b)(2)(A)-(E). Subsection 512(c), "Information residing

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8on systems or networks at the direction of users," creates asafe harbor from liability "for infringement of copyright byreason of the storage at the direction of a user of materialthat resides on a system or network controlled or operated byor for the service provider," as long as the ISP meets certainconditions regarding its lack of knowledge concerning, finan-cial benefit from, and expeditious efforts to remove or denyaccess to, material that is infringing or that is claimed to bethe subject of infringing activity. See 17 U.S.C.5 512(c)(1)(A)-(C). Finally, 512(d), "Information locationtools," provides a safe harbor from liability "for infringementof copyright by reason of the provider referring or linkingusers to an online location containing infringing material orinfringing activity, by using information location tools" suchas "a directory, index, reference, pointer, or hypertext link,"subject to the same conditions as in 512(c)(1)(A)-(C). See17 U.S.C. 5 512(d)(1)-(3).

Notably present in 5 512(b)-(d), and notably absent from 512(a), is the so-called notice and take-down provision. Itmakes a condition of the ISP's protection from liability forcopyright infringement that "upon notification of claimedinfringement as described in [5 512](c)(3)," the ISP "respondsexpeditiously to remove, or disable access to, the materialthat is claimed to be infringing." See 17 U.S.C.5 512(b)(2)(E), 512(c)(1)(C), and 512(d)(3).

Verizon argues that 512(h) by its terms precludes theClerk of Court from issuing a subpoena to an ISP acting as aconduit for P2P communications because a 512(h) subpoenarequest cannot meet the requirement in 512(h)(2)(A) that aproposed subpoena contain "a copy of a notification [ofclaimed infringement, as] described in [ 512](c)(3)(A)."* In

*Subsection 512(c)(3)(A)provides that "[t]o be effective underthis subsection, a notification of claimed infringement must be awritten communication ... that includes substantially the follow-ing":(i) A physical or electronic signature of a person authorized toact on behalf of the owner ofan exclusive right that is allegedlyinfringed.

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9particular, Verizon maintains the two subpoenas obtained bythe RIAA fail to meet the requirements of 512(c)(3)(A)(iii)in that they do not - because Verizon is not storing theinfringing material on its server - and can not, identifymaterial "to be removed or access to which is to be disabled"by Verizon. Here Verizon points out that 512(h)(4) makessatisfaction of the notification requirement of 512(c)(3)(A) acondition precedent to issuance of a subpoena: "If the notifi-cation filed satisfies the provisions of [ 512](c)(3)(A)" and theother content requirements of 512(h)(2) are met, then "theclerk shall expeditiously issue and sign the proposed subpoe-na ... for delivery" to the ISP.

Infringing material obtained or distributed via P2P filesharing is located in the computer (or in an off-line storage

(ii) Identification of the copyrighted work claimed to have beeninfringed, or, if multiple copyrighted works at a single onlinesite are covered by a single notification, a representative list ofsuch works at that site.(iii) Identification of the material that is claimed to be infring-ing or to be the subject of infringing activity and that is to beremoved or access to which is to be disabled, and informationreasonably sufficient to permit the service provider to locatethe material.(iv) Information reasonably sufficient to permit the serviceprovider to contact the complaining party, such as an address,telephone number, and, if available, an electronic mail addressat which the complaining party may be contacted.(v) A statement that the complaining party has a good faithbelief that use of the material in the manner complained of isnot authorized by the copyright owner, its agent, or the law.(vi) A statement that the information in the notification isaccurate, and under penalty of perjury, that the complainingparty is authorized to act on behalf of the owner of an exclusiveright that is allegedly infringed.

17U.S.C. 512(c)(3)(A).

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10device, such as a compact disc) of an individual user. Nomatter what information the copyright owner may provide,the ISP can neither "remove" nor "disable access to" theinfringing material because that material is not stored on theISP's servers. Verizon can not remove or disable one user'saccess to infringing material resident on another user's com-puter because Verizon does not control the content on itssubscribers' computers.

The RIAA contends an ISP can indeed "disable access" toinfringing material by terminating the offending subscriber'sinternet account. This argument is undone by the terms ofthe Act, however. As Verizon notes, the Congress considereddisabling an individual's access to infringing material anddisabling access to the internet to be different remedies forthe protection of copyright owners, the former blocking ac-cess to the infringing material on the offender's computer andthe latter more broadly blocking the offender's access to theinternet (at least via his chosen ISP). Compare 17 U.S.C. 512(j)(1)(A)(i) (authorizing injunction restraining ISP "fromproviding access to infringing material") with 17 U.S.C. 512(j)(1)(A)(ii) (authorizing injunction restraining ISP"from providing access to a subscriber or account holder ...who is engaging in infringing activity ... by terminating theaccounts of the subscriber or account holder"). "[W]heredifferent terms are used in a single piece of legislation, thecourt must presume that Congress intended the terms havedifferent meanings." Transbrasil S.A. Linhas Aereas v.Dep't of Transp., 791 F.2d 202, 205 (D.C. Cir. 1986). Thesedistinct statutory remedies establish that terminating a sub-scriber's account is not the same as removing or disablingaccess by others to the infringing material resident on thesubscriber's computer.

The RIAA points out that even if, with respect to an ISPfunctioning as a conduit for user-directed communications, acopyright owner cannot satisfy the requirement of 512(c)(3)(A)(iii) by identifying material to be removed bythe ISP, a notification is effective under 512(c)(3)(A) if it"includes substantially" the required information; that stan-dard is satisfied, the RIAA maintains, because the ISP can

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11identify the infringer based upon the information provided bythe copyright owner pursuant to 512(c)(3)(A)(i)-(ii) and(iv)-(vi). According to the RIAA, the purpose of 512(h)being to identify infringers, a notice should be deemed suffi-cient so long as the ISP can identify the infringer from the IPaddress in the subpoena.

Nothing in the Act itself says how we should determinewhether a notification "includes substantially" all the requiredinformation; both the Senate and House Reports, however,state the term means only that "technical errors ... such asmisspelling a name" or "supplying an outdated area code" willnot render ineffective an otherwise complete 512(c)(3)(A)notification. S. Rep. No. 105-190, at 47 (1998); H.R. Rep.No. 105-551 (II), at 56 (1998). Clearly, however, the defect inthe RIAA's notification is not a mere technical error; norcould it be thought "insubstantial" even under a more forgiv-ing standard. The RIAA's notification identifies absolutelyno material Verizon could remove or access to which it coulddisable, which indicates to us that 512(c)(3)(A) concernsmeans of infringement other than P2P file sharing.

Finally, the RIAA argues the definition of "[internet] ser-vice provider" in 512(k)(1)(B) makes 512(h) applicable toan ISP regardless what function it performs with respect toinfringing material - transmitting it per 512(a), caching itper 512(b), hosting it per 512(c), or locating it per 512(d).

This argument borders upon the silly. The details of thisargument need not burden the Federal Reporter, for thespecific provisions of 512(h), which we have just rehearsed,make clear that however broadly "[internet] service provider"is defined in 512(k)(1)(B), a subpoena may issue to an ISPonly under the prescribed conditions regarding notification.Define all the world as an ISP if you like, the validity of a 512(h) subpoena still depends upon the copyright holderhaving given the ISP, however defined, a notification effectiveunder 512(c)(3)(A). And as we have seen, any notice to anISP concerning its activity as a mere conduit does not satisfythe condition of 512(c)(3)(A)(iii) and is therefore ineffective.

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12In sum, we agree with Verizon that 8 512(h) does not by itsterms authorize the subpoenas issued here. A 8 512(h) sub-

poena simply cannot meet the notice requirement of8 512(c)(3)(A)(iii).B. StructureVerizon also argues the subpoena provision, 8 512(h), re-lates uniquely to the safe harbor in 8 512(c) for ISPs engagedin storing copyrighted material and does not apply to thetransmitting function addressed by the safe harbor in8 512(a). Verizon's claim is based upon the "three separate

cross-references" in 8 512(h) to the notification described in8 512(c)(3)(A). First, as we have seen, 8 512(h)(2)(A) re-quires the copyright owner to file, along with its request for asubpoena, the notification described in 8 512(c)(3)(A). Sec-ond, and again as we have seen, 8 512(h)(4) requires that thenotification satisfy "the provisions of [8 512](c)(3)(A)" as acondition precedent to the Clerk's issuing the requestedsubpoena. Third, 8 512(h)(5) conditions the ISP's obligationto identify the alleged infringer upon "receipt of a notificationdescribed in [8 512](c)(3)(A)." We agree that the presence in8 512(h) of three separate references to 8 512(c) and theabsence of any reference to 8 512(a) suggests the subpoenapower of 8 512(h) applies only to ISPs engaged in storingcopyrighted material and not to those engaged solely intransmitting it on behalf of others.

As the RIAA points out in response, however, because88 512(b) and (d) also require a copyright owner to provide a"notification ... as described in [8 512](c)(3)," the cross-references to 8 512(c)(3)(A) in 8 512(h) can not confine theoperation of 8 512(h) solely to the functions described in8 512(c), but must also include, at a minimum, the functionsdescribed in 88 512(b) and (d). Therefore, according to theRIAA, because Verizon is mistaken in stating that "the take-down notice described in [8 512](c)(3)(A) ... applies exclu-sively to the particular functions described in [8 512](c) of thestatute," the subpoena power in 8 512(h) is not linked exclu-sively to 8 512(c) but rather applies to all the ISP functions,wherever they may be described in 88 512(a)-(d).

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13Although the RIAA's conclusion is a non-sequitur with

respect to 512(a), we agree with the RIAA that Verizonoverreaches by claiming the notification described in 512(c)(3)(A) applies only to the functions identified in 512(c). As Verizon correctly notes, however, the ISP activ-ities described in 512(b) and (d) are storage functions. Assuch, they are, like the ISP activities described in 512(c)and unlike the transmission functions listed in 512(a), sus-ceptible to the notice and take down regime of 512(b)-(d),of which the subpoena power of 512(h) is an integral part.We think it clear, therefore, that the cross-references to 512(c)(3) in 512(b)-(d) demonstrate that 512(h) appliesto an ISP storing infringing material on its servers in anycapacity - whether as a temporary cache of a web pagecreated by the ISP per 512(b), as a web site stored on theISP's server per 512(c), or as an information locating toolhosted by the ISP per 512(d) - and does not apply to anISP routing infringing material to or from a personal comput-er owned and used by a subscriber.

The storage activities described in the safe harbors of 512(b)-(d) are subject to 512(c)(3), including the notifica-tion described in 512(c)(3)(A). By contrast, as we havealready seen, an ISP performing a function described in 512(a), such as transmitting e-mails, instant messages, orfiles sent by an internet user from his computer to that ofanother internet user, cannot be sent an effective 512(c)(3)(A) notification. Therefore, the references to 512(c)(3) in 512(b) and (d) lead inexorably to the conclu-sion that 512(h) is structurally linked to the storage func-tions of an ISP and not to its transmission functions, such asthose listed in 512(a).

C. Legislative HistoryIn support of its claim that 512(h) can - and should - beread to reach P2P technology, the RIAA points to congres-

sional testimony and news articles available to the Congressprior to passage of the DMCA. These sources document thethreat to copyright owners posed by bulletin board services

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14(BBSs) and file transfer protocol (FTP) sites, which the RIAAsays were precursors to P2P programs.

We need not, however, resort to investigating what the105th Congress may have known because the text of 512(h)and the overall structure of 512 clearly establish, as wehave seen, that 512(h) does not authorize the issuance of asubpoena to an ISP acting as a mere conduit for the trans-mission of information sent by others. Legislative historycan serve to inform the court's reading of an otherwiseambiguous text; it cannot lead the court to contradict thelegislation itself. See Ratzlaf v. United States, 510 U.S. 135,147-48 (1994) ("[W]e do not resort to legislative history tocloud a statutory text that is clear").

In any event, not only is the statute clear (albeit complex),the legislative history of the DMCA betrays no awarenesswhatsoever that internet users might be able directly toexchange files containing copyrighted works. That is notsurprising; P2P software was "not even a glimmer in any-one's eye when the DMCA was enacted." In re Verizon I,240 F. Supp. 2d at 38. Furthermore, such testimony as wasavailable to the Congress prior to passage of the DMCAconcerned "hackers" who established unauthorized FTP orBBS sites on the servers of ISPs, see Balance of Responsibil-ities on the Internet and the Online Copyright LiabilityLimitation Act: Hearing on H.R. 2180 Before the HouseSubcomm. on Courts and Intellectual Property, Comm. onthe Judiciary, 105th Cong. (1997) (statement of Ken Wasch,President, Software Publishers Ass'n); rogue ISPs that post-ed FTP sites on their servers, thereby making files of copy-righted musical works available for download, see Complaint,Geffen Records, Inc. v. Arizona Bizness Network, No. CIV.98-0794, at 1 (D. Ariz. May 5, 1998) available at http://www.riaa.com/news/newsletter/pdf/geffencomplaint.pdf, (lastvisited December 2, 2003); and BBS subscribers using dial-uptechnology to connect to a BBS hosted by an ISP. TheCongress had no reason to foresee the application of 512(h)to P2P file sharing, nor did they draft the DMCA broadlyenough to reach the new technology when it came along.Had the Congress been aware of P2P technology, or antici-

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15pated its development, 512(h) might have been draftedmore generally. Be that as it may, contrary to the RIAA'sclaim, nothing in the legislative history supports the issuanceof a 512(h) subpoena to an ISP acting as a conduit for P2Pfile sharing.

D. Purpose of the DMCAFinally, the RIAA argues Verizon's interpretation of thestatute "would defeat the core objectives" of the Act. More

specifically, according to the RIAA there is no policy justifica-tion for limiting the reach of 512(h) to situations in whichthe ISP stores infringing material on its system, consideringthat many more acts of copyright infringement are committedin the P2P realm, in which the ISP merely transmits thematerial for others, and that the burden upon an ISP re-quired to identify an infringing subscriber is minimal.

We are not unsympathetic either to the RIAA's concernregarding the widespread infringement of its members' copy-rights, or to the need for legal tools to protect those rights.It is not the province of the courts, however, to rewrite theDMCA in order to make it fit a new and unforseen internetarchitecture, no matter how damaging that development hasbeen to the music industry or threatens being to the motionpicture and software industries. The plight of copyrightholders must be addressed in the first instance by the Con-gress; only the "Congress has the constitutional authorityand the institutional ability to accommodate fully the variedpermutations of competing interests that are inevitably impli-cated by such new technology." See Sony Corp. v. UniversalCity Studios, Inc., 464 U.S. 417, 431 (1984).

The stakes are large for the music, motion picture, andsoftware industries and their role in fostering technologicalinnovation and our popular culture. It is not surprising,therefore, that even as this case was being argued, commit-tees of the Congress were considering how best to deal withthe threat to copyrights posed by P2P file sharing schemes.See, e.g., Privacy & Piracy: The Paradox of Illegal FileSharing on Peer-to-Peer Networks and the Impact of Tech-nology on the Entertainment Industry: Hearing Before the

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16Senate Comm. On Governmental Affairs, 108th Congress(Sept. 30, 2003); Pornography, Technology, and Process:Problems and Solutions on Peer-to-Peer Networks: HearingBefore the Senate Comm. on the Judiciary, 108th Congress(Sept. 9, 2003).

III. ConclusionFor the foregoing reasons, we remand this case to thedistrict court to vacate its order enforcing the February 4

subpoena and to grant Verizon's motion to quash the July 24subpoena. So ordered.

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CERTIFICATE OF PARTIES AND AMICIPursuant to D.C. Circuit Rules 28(a)(1)(A) and 35(c), the Recording Industry Association

of America, by its attorneys, hereby certifies that the following parties, intervenors and amiciappeared before the District Court and this Court:

District Court. The parties and amici before the District Court were as follows:Plaintiff

Recording Industry Association of AmericaDefendant

Verizon Internet Services, Inc.Intervenor (D.D.C. No. 1:03MS00040)

United StatesAmici Curiae (D.D.C. No. 1:02MS 0323)

Alliance for Public TechnologyComputer Professionals for Social ResponsibilityConsumer AlertElectronic Frontier FoundationMedia Access ProjectNational GrangeNational Consumers LeaguePrivacy Rights ClearinghousePrivacy ActivismPublic Knowledge

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Utility Consumers' Action NetworkElectronic Privacy Information Center (EPIC)Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of LawUnited States Internet Industry AssociationThe Computer & Communications Industry AssociationInternet Service Providers Association (South Africa)Yahoo!, Inc.Southern StarMercury Networks, LLCNetlink 2000, LLCZzapp! Internet ServicesSMCNET LLCIce Communications, Inc.Frontier and Citizens CommunicationsDM SolutionsMotion Picture Association of America (MPAA)

Amici Curiae (D.D.C. No. 1:03MS00040)The Computer & Communications Industry AssociationTexas Internet Service Providers AssociationWashington Association of Internet Service ProvidersInkeeper Co.Progressive InternetSouthern Star

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Mercury Network Corp.Zzapp! Internet ServicesCapricia Internet ServicesLRBCG.com, Inc.STIC.net, LPWiredsafety.ogParry AftabMotion Picture Association of America (MPAA)

Court of Appeals. The parties and amici before this Court were as follows:Plaintiff-Appellee

Recording Industry Association of AmericaDefendant-Appellant

Verizon Internet Services, Inc.Intervenor

United States of AmericaAmici Curiae (D.C. Cir. No. 03-7015)

Public CitizenAmerican Legislative Exchange CouncilCapricia Intemet ServicesComputer Communications Industry AssociationEuropean Internet Service Provider AssociationInKeeper Co.Mercury Network Corp.

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New York State Telecommunications Association, Inc.Progressive Intemet ActionSBC Internet ServicesSouthern StarStic.net. LPTexas Internet Service Providers AssociationUnited States Internet Industry AssociationUnited States Internet Service Provider AssociationUnited States Telecom AssociationWashington Association of Internet Service ProvidersZzapp! Intemet ServicesAlliance for Public TechnologyAmerican Civil Liberties UnionACLU of the National Capital AreaAmerican Association of Law LibrariesAmerican Library AssociationAssociation of Research LibrariesCitizens for a Sound Economy FoundationCompetitive Enterprise InstituteComputer Professionals for Social ResponsibilityConsumer ActionConsumer Federation of AmericaConsumers Union

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DigitalConsumer.orgDigital Future CoalitionEDUCAUSEElectronic Frontier FoundationElectronic Privacy Information CenterMedia Access ProjectNational Association of Consumer Agency AdministratorsNational Coalition Against Domestic ViolenceNational Consumers LeagueNational Grange of the Order of Patrons of HusbandryPacific Research InstitutePrivacy Rights ClearinghousePrivacyactivismPublic KnowledgeUtility Consumers' Action NetworkWiredSafety.org

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CORPORATE DISCLOSURE STATEMENTPursuant toD.C. Circuit Rules 26.1 and 35(c), the Recording Industry Association of

America, by its attorneys, respectfully states that it is not a corporate entity, and is neither ownedby a parent corporation nor by any publicly held corporation that owns 10%or more of its stock.

00604-20040202 petition rehearing

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