Volume III

Issue : 1: January 13, 2005

• Appeals Court Finds Rule-Based Works are not Original for U.S. Copyright Law
• European Commission Approves New Set of Standard Contractual Clauses for the Transfer of Personal Data
• Appeals Court Upholds Decision Barring Regulation of VoIP
• RIAA v. Verizon Revisited: German Court Rules ISP's not Required to Disclose File-Swapper Info
• U.S. Federal Court of Appeals Rules DMCA Does Not Allow Subpoenaing of ISP Subscriber Information
• Utah Anti Spam Law Doesnt Prohibit Pop up Advertisements
• Appeals Court Finds Rule-Based Works are not "Original" for U.S. Copyright Law

Home > Volume III > Issue 1: January 13, 2005 > U.S. Federal Court of Appeals Rules DMCA Does Not Allow Subpoenaing of ISP Subscriber Information

U.S. Federal Court of Appeals Rules DMCA Does Not Allow Subpoenaing of ISP Subscriber Information

The United States Court of Appeals for the Eighth Circuit (the "Court") recently ruled that the U.S. Digital Millennium Copyright Act (the "DMCA") does not permit a person to obtain and serve subpoenas on internet service providers ("ISPs") to obtain subscriber personal information where the subscriber is alleged to be transmitting copyrighted works through the current generation of peer to peer ("P2P") file sharing networks.

 

The case involved the use of Section 512(h) of the DMCA by The Recording Industry Association of America (the "RIAA") to obtain subpoenas requiring Charter Communications, Inc. ("Charter"), a U.S. cable company, to produce the names, physical addresses, telephone numbers and e-mail addresses of approximately 200 Charter subscribers. The RIAA alleged that the subscribers collectively made more than 100,000 copyrighted songs available for copying over P2P networks such as KaZaA, Grokster, Morpheus and iMesh. The relevant feature of such P2P networks is the lack of a central storage location for the shared files. Rather, these networks allow a user to access and download files directly from another user's computer.

The Court adopted the reasoning of the U.S. Court of Appeals for the District Court of Columbia in RIAA v. Verizon Internet Services Inc., 351 F.3d 1229, 1232 (D.C. Cir. 2003) which addressed the identical issue. In particular, the Court determined that it is a condition precedent to the issuance of subpoenas under Section 512(h) of the DMCA that the ISP be able to both locate and remove the allegedly infringing material. Thus, the Court found that, in the context of the current generation of P2P networks, where an ISP does nothing more than transmit, route, or provide connections for copyrighted material (i.e. act as a mere conduit for the transmission), the DMCA does not authorize subpoenas because the ISP cannot remove or disable one user's access to infringing material resident on another user's computer.

For a copy of the case, visit:
http://www.ca8.uscourts.gov/opndir/05/01/033802P.pdf
p>For a copy of the Verizon decision, visit:
http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf