US ISPs are not to reveal the identity of subscribers using P2P technology
Publié le 06/01/2004 par olivier van droogenbroek - 0 vues
A US court has recently issued an interesting decision regarding internet intermediary liability. In Europe internet intermediary rules are set forth in the 2000/31 E-Commerce Directive. With regard to copyright law, a parallel liability regime is set forth in the US DMCA (Digital Copyright Millenium Act). Pursuant to the DMCA the Recording Industry Association of…
A US court has recently issued an interesting decision regarding internet intermediary liability.
In Europe internet intermediary rules are set forth in the 2000/31 E-Commerce Directive. With regard to copyright law, a parallel liability regime is set forth in the US DMCA (Digital Copyright Millenium Act).
Pursuant to the DMCA the Recording Industry Association of America (RIAA) claimed against Verizon Internet Services Inc., a US based ISP, a subpoena seeking information on the identity of a subscriber of Verizon’s internet access services alleged of copyright infringement. As a matter of fact, this subscriber allegedly committed copyright infringement through a P2P file sharing system. The RIAA also requested Verizon to remove or disable access to the copyright protected files.
In her appeal decided December 19, 2003 the Colombia District Court quashed an earlier judgement ordering Verizon to reveal her subscriber’s identity.
The RIAA invokes Title 17 Section 512 of the United States Code which makes it possible for a copyright owner or a person authorized to act on the owner’s behalf to request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
However, the Court agreed on Verizon’s arguments that the above mentioned section does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to exchange files without storing infringing material on its server.
An ISP can not identify the infringing material through an IP address delivered by a copyright holder as the infringing material is not stored on the ISP’s Servers. Therefore Verizon, as well as any other ISP, can neither remove or disable access to such infringing material as an ISP does not control the content on its subscribers’ computers. Access is disabled when the access to the infringing material on the infringer’s computer is blocked which is different to blocking the infringer’s access to the internet. Terminating the subscriber’s accounts is not the same as removing or disabling access by others to the infringing material resident on the subscriber’s computer.
The court summarize the situation as such :
This case concerns the Recording Industry Association of America’s use of the subpoena provision of the Digital Millennium Copyright Act, 17 U.S.C. § 512(h), to identify internet users the RIAA believes are infringing the copyrights of its members. The RIAA served two subpoenas upon Verizon Internet Services in order to discover the names of two Verizon subscribers who appeared to be trading large numbers of .mp3 files of copyrighted music via ‘‘peer-to-peer’’ (P2P) file sharing programs, such as KaZaA. Verizon refused to comply with the subpoenas on various legal grounds.
The district court rejected Verizon’s statutory and constitutional challenges to § 512(h) and ordered the internet service provider (ISP) to disclose to the RIAA the names of the two subscribers. On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) § 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others; if the statute does authorize such a subpoena, then the statute is unconstitutional because (2) the district court lacked Article III jurisdiction to issue a subpoena with no underlying ‘‘case or controversy’’ pending before the court; and (3) § 512(h) violates the First Amendment because it lacks sufficient safeguards to protect an internet user’s ability to speak and to associate anonymously.
Because the court agree with Verizon’s interpretation of the statute, it reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon’s constitutional arguments.
This decision may have an impact in Europe since the E-Commerce Directive provides in a similar ISP liability regime.
More information ?
See the decision, available on our web site</a