Report from the Verizon v. RIAA Court Hearing

Judge John D. Bates heard arguments this morning in RIAA v. Verizon, the “test case” for the subpoena provisions of the DMCA (section 512(h)). Both parties were given upwards of 45 minutes to develop their arguments and rebuttals, and the Judge permitted amicus Motion Picture Association of America to make a brief argument which for the most part said that the Motion Picture Industry had a large financial stake in DMCA enforcement.

Both parties and the Judge seemed to agree that the critical issue was one of statutory interpretation. They also agreed that the statute was poorly worded and there was a paucity of legislative history to answer the question unambiguously. Specifically at issue is whether the subpoena provisions apply equally to 512(a) service providers (where the provider is a “conduit” for user communications) as to 512(b), (c), and (d) providers. Verizon argued that the subpoena provision was specifically targeted at 512(c) providers, where the allegedly infringing material actually resides on the provider’s servers (e.g., pirate website hosted by provider) and does not apply to 512(a) providers; which is the function they are serving when peer-to-peer applications use their network. The RIAA argued that this distinction didn’t make any sense, and in fact they were unable to tell the Judge how many 512(h) subpoenas they had issued on 512(a) providers vs. 512(c) providers. No one could really clarify the status of 512(b) or (d) providers.

The Judge was particularly interested in the “constitutional avoidance” issue; that is, when in doubt, a statute should not be interpreted in a way that raises constitutional concerns. The RIAA argued with the Judge as to what the constitutional avoidance doctrine actually was; they insisted that it would only be raised with a facial challenge to the statute, not a challenge to the statute as applied. Of course, it seems more likely that Judge Bates will agree with his own interpretation of the doctrine.

The Judge questioned the parties repeatedly about the distinction between 512(a), (b), (c), and (d) providers with respect to the Constitutional issues. If a subpoena of 512(a) provider raises significant First Amendment privacy/anonymous speech concerns, why wouldn’t this apply equally to a 512(c)? In fact, it appears the Judge was looking for a Constitutional challenge to the entire subpoena process but Verizon wanted to focus on potential Constitutional issues with subpoenas of a 512(a) provider.

It didn’t seem to me that there was a clear winner today, and the Judge didn’t clearly indicate which way he was leaning, although he was quite solicitous to the Constitutional arguments. He does seem to have a very good grasp on the underlying issues and the technology involved, and promised to issue a decision quickly. I’m sure we’ll see some news reports and press releases later today.”

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