Copyright Court Cases
- Macrovision v. Sima
- Perfect 10 v. Google
- Greenberg v. National Geographic Society
- eBay v. MercExchange
- ALA v. FCC
- Bowers v. Baystate Technologies
- Dastar Corp. v. Twentieth Century Fox Film Corp
- Eldred v. Ashcroft
- Faulkner v. National Geographic Society
- RIAA Cases
- MGM Studios, Inc. v. Grokster, Ltd
- The New York Times v. Tasini
- Universal City v. Remeirdes
Macrovision Corp. V. Sima Products Corp. in the U.S. Court of Appeals for the Federal Circuit, on appeal from the U.S. District Court (S.D.N.Y.)
This case concerns an interpretation of the Digital Millennium Copyright Act's prohibition against circumvention of technological locks placed on copyrighted works, an issue of great interest to libraries since the DMCA was passed in 1998. See our filings under the DMCA's Section 1201(a)
The libraries and other creators and users of digital products have joined an amici curiae (friends of the court) brief in support of Sima Products Corporation, the defendant in the court below and appellant in the Federal Circuit court of appeals.
The brief, filed in August 2006, argues that the lower court's interpretation of the DMCA would outlaw something as simple as a technology that digitizes analog content. This interpretation, if it stands on appeal, would threaten a wide range of legitimate technologies, and by extension, a wide range of legitimate uses. It could even mean that it violates the DMCA to use the new sophisticated copiers with page-turning capability that make it possible to produce high-quality digital copies of bound books.
On July 20, the Library Copyright Alliance (LCA) joined with the Electronic Frontier Foundation (EFF) in filing an amici curiae (“friends of the court”) brief [PDF] in the U.S. Court of Appeals for the Ninth Circuit in a case concerning critical digital copyright issues. The LCA is a coalition of library groups consisting of the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association and the Special Libraries Association.
Summary of case
The suit against the Internet search company Google by the adult entertainment publisher Perfect 10 claims that Google’s Image Search service violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results.Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.
The case is on appeal from a lower court ruling issued in February 2006 that ordered Google to remove links to certain websites containing Perfect 10 photographs pending the outcome of the case.Experts, however, widely viewed the ruling as a victory for Google, as the court rejected many of Perfect 10 arguments.
Lower court decision
Perfect 10 is a company that publishes erotic photographs in a magazine and a website.The company, which has sued numerous service providers in recent years for infringement, sued Google both for displaying thumbnail images of Perfect 10 photographs in response to search queries and for linking to sites where infringing images were displayed. The federal district court in California issued a preliminary injunction to Perfect 10 with respect to some of its claims. Perfect 10, Inc. v. Google, Inc., 416 F.Supp 2d 828 (D. Cal. 2006). The court’s decision contains both positive and negative rulings for search engines.
While the court found that providing links to third-party web pages did not lead to Google’s direct or secondary liability for copyright infringement, the court did nonetheless impose direct liability for Google’s display of the thumbnail images by rejecting Google’s fair use defense.The court distinguished the thumbnails here from the thumbnails by the search engine in Kelly v. ArribaSoft, 336 F.3d 811 (9th Cir. 2003), a case in which the federal appeals court for the Ninth Circuit found the display of thumbnail images not to be infringing activity.
The court identified two features that distinguished this case from Kelly. In Kelly, the company displaying thumbnail images, ArribaSoft, received no financial benefit from the display of the Kelly’s photograph. In this case, however, the court found that Google received a financial benefit from the display of the Perfect 10 thumbnails because the thumbnails led users to infringing sites from which Google profited through its AdSense program. Second, in Kelly, the court found that ArribaSoft’s display of thumbnails did not harm the market for Kelly’s work, in part because there was no market for the licensing of thumbnail images of Western scenery, the subject of Kelly’s photos. Here, in contrast, there does appear to be a market for thumbnail images of naked women: A company called Fonestar licenses photos and makes them available for download on cell-phones, where they are the same size as the thumbnails Google displays. The district court found that it was possible that Google's display of the thumbnails would interfere with the success of the Fonestar service because cell-phone users could see the thumbnails through Google image search for free. Because of these factors, the court concluded that Google was unlikely to prevail on its fair use defense.
Why libraries are concerned about this case
The court’s rulings relating to in-line linking are very positive for the Internet generally and search engines in particular.In-line linking is a basic Internet technology, and imposing liability based on such linking would disrupt the Internet’s operation.In contrast, the court’s ruling concerning the display of thumbnails, if it stands on appeal, could create serious problems for search engines. Jonathan Band, outside counsel for the Library Copyright Alliance, explains that this is because the court’s analysis calls into question any search business model that relies on advertising tied to search results:
The court distinguished Kelly by citing Google’s AdSense program, where Google serves advertising on websites that users access by clicking on Google search results.The court believed that advertising revenue tied to search results rendered Google’s use far more commercial than Arriba’s. But many commercial search engines now derive advertising revenue from search results, and some use business models similar to AdSense. If a linkage between advertising revenue and search results renders the copying performed by search engines unfair, then advertising-based commercial search engines, which provide free access to users, are in serious jeopardy.
The court also distinguished Kelly by pointing to the Fonestarz service, which for a fee provides Perfect 10 images to cell phone users.The District Court concluded that Google’s display of Perfect 10 thumbnails undermined the market for Fonestarz, thus tilting the fourth fair use factor against Google. As Band explains, “This analysis casts doubt on all image search. In the future, firms may seek to provide specialized image download services to cell phones, e.g., images of entertainers, athletes, politicians, art, architecture, and animals. Each firm will claim that image search results compete with its service.”
The libraries’ and EFF’s amici brief discusses the potential implications:
Libraries, in particular, rely on commercial search engines, including image search functions, to help patrons navigate the sea of information that constitutes the World Wide Web. Increasingly, the most current information relating to science, public health, government activities, and financial markets can be found only on the Web.And in the experience of Amici library associations, commercial search engines such as Google’s often are the most efficient and effective means of finding the relevant universe of information. Image search allows librarians to find images of chemical compounds, microorganisms, surgical techniques, maps, graphs, photojournalism, and paintings, just to name a handful of the sorts of images librarians find for patrons.
If Google does not prevail in its appeal, Band states, “Search engines in the United States may have a grim future.”
More information and analysis of the case, as well as briefs that have been filed, can be found atEFF. The appellate court is not likely to issue a decision for several months.
Libraries and Archivists file Amici Brief in Appeals Court
The Library Copyright Alliance and the Society of American Archivists filedan amici curiae ("friends of the court") brief [PDF]on June 7 in the U.S. Court of Appeals for theEleventh Circuit. ALA and our fellow library associations have a long history with this case, which involves an allegation of copyright infringement against the National Geographic Society (NGS), due to its publication of past issues on CD-ROM. The case concerns whether publishers of collective works and others who may choose legitimately to digitize them can re-publish those works in a digital format without seeking permission of authors or other contributors.Several freelance photographers, as well as some writers, sued the National Geographic Society (NGS) for copyright infringement because some of their works are included in a CD-ROM produced by the NGS. The CD-ROM contains photo-scanned images of the entire print version of the National Geographic magazine from 1888 to 1996 in a searchable format.
A lower court found that the publication on CD-ROM is permissible under the Copyright Act, but in 2001, the U.S. Court of Appeals for the Eleventh Circuit reversed and ruled against the NGS. The NGS appealed to the U.S. Supreme Court and the library associations filed an amici curiae (friends of the court) brief in support of the NGS.The U.S. Supreme Court declined to hear the appeal because it had essentially ruled on the issue in June 2001 in the The New York Times v. Tasini case (see further discussion below). The Eleventh Circuit then sent the case back to the trial court, which was obliged to follow the appellate court’s ruling and so ruled against the NGS. NGS has appealed again to the Eleventh Circuit and has once more asked libraries to support its position by filing an amici brief. The Library Copyright Alliance and the Society of American Archivists filed their brief on June 7. We now will find out whether the Eleventh Circuit would have ruled the other way if it had had the benefit of the Tasini decision.
We also filed briefs at the appellate and Supreme Court levels in a related case, Faulkner v. National Geographic Society.There the lower court and the appeals court for the Second Circuit ruled in favor of the NGS, finding that as long as digital versions place photographs and articles in the same context as the print original, there is no infringement of copyright.Those courts relied upon the Supreme Court’s 2001 decision in New York Times v. Tasini, interpreting the same provision of the Copyright Act. In Tasini, the Court affirmed the copyright privileges of freelance writers whose works were originally published in newspapers and periodicals and then licensed by the publishers to commercial electronic databases, where the works appeared as singular, isolated articles rather than as part of an entire publication. In contrast, the Tasini Court held that microfilm and microfiche were permissible conversions of intact periodicals “from one medium to another.” The Court specifically reaffirmed that the copyright law is media-neutral and that “the transfer of a work between media does not alter the character of that work for copyright purposes.”
The libraries supported the authors, not the publishers, in Tasini.Though it may not be apparent at first blush, our support of the publishers in the two NGS cases is consistent with the arguments we made in Tasinias well as our statements about the impact of the case on libraries. Our position is that the Copyright Act permits publishers, libraries, archives, and the public to take advantage of new technologies to preserve and distribute creative works to the public if no changes are made to the original work once republished in a different format. The Greenberg case has major implications for projects that involve retrospective digitization of print versions of scholarly materials and the public’s access to those materials.
U.S. Supreme Court Rules in Patent Case
On May 25, the U.S. Supreme Court ruled in favor of eBay in a significant patent case that was appealed from the Federal Circuit Court of Appeals. In a unanimous opinion, the Court held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. The ruling underscores that patents (and copyrights) are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress.
On January 26, ALA had joined in filing an "amici curiae" (friends of the court) brief in the U.S. Supreme Court in the case. The case has important implications for copyright law insofar as it raised questions about the nature of intellectual property: is IP just like any other form of property, or does it possess unique characteristics that distinguish it from tangible property? The amici, filing on behalf of eBay, were the Electronic Frontier Foundation (which wrote the brief), the Public Patent Foundation, the American Association of Law Libraries, the Special Libraries Association and ALA.
The case concerned the Federal Circuit's "automatic injunction rule," under which the Federal Circuit almost always grants an injunction in patent cases absent extraordinary circumstances, such as a healthcare emergency. In all other cases, courts weigh four equitable factors (balance of hardships, irreparable injury, adequacy of money damages, and public interest), but in patent cases the Federal Circuit had effectively thrown normal equitable principles out the window.
One reason for its doing so is a 1908 Supreme Court case, Continental Paper Bag v. Eastern Paper Bag, where the Court said that a patent is property like any other property, so the patent owner has the right to exclude infringers from that property. The statements of the Court in that case (though not technically the exact holding) have led some to equate intellectual property with real property. This is an approach to intellectual property law that libraries and others have tried hard to avoid, instead emphasizing that patents and copyrights are unique forms of property, created by statute and designed to encourage innovation and to benefit the public. In granting "certiorari" (appeal), the Supreme Court asked the parties to address both whether the "automatic injunction rule" should stand, and whether it should continue to follow Continental Paper Bag.
Although patents are not normally within the scope of libraries’ concerns, the library associations believed that this case presented an opportunity to attack the notion that intellectual property is just like any other form of property. This obviously is a very important point for libraries.
The brief also argued that the automatic injunction rule chills free speech. For example, there are over 200 patents pending on technology relating to Web logs (“blogs”). Under the automatic injunction rule, any one of these patents could shut down all blogs because the rule in essence prohibits courts from considering the four equitable factors (particularly the public interest). The Federal Circuit’s rule also threatens academic freedom. The brief points out that more and more entities are attempting to patent online education and research tools, from methods used in distance learning to online instruction in language, music and mathematics (including a patent on using inductive reasoning to teach vocabulary). An injunction against the use of these methods could directly impinge on academic speech.
- RIAA v. Pacific Bell Internet Services
(U.S. Court of Appeals, 9th Circuit)
- RIAA v. Verizon Internet Services
(U.S. Court of Appeals, D.C. Circuit, ruled Dec. 19, 2003; petition for certiorari denied, October 12, 2004)
- RIAA v. Charter Communications
(U.S. Court of Appeals, 8th Circuit)
In each of these cases ALA joined amicus briefs filed on behalf of the Internet service providers resisting efforts by RIAA to obtain identities of users alleged to infringe copyright. These cases challenge the propriety of the recording industry serving subpoenas on ISPs without judicial oversight. The U.S. Court of Appeals for D.C. Circuit ruled Dec. 19, 2003, in favor of Verizon. In October 2004, the U.S. Supreme Court denied the RIAA's petition asking it to review the appellate court's decision. The other cases are still pending in the appeals courts.
Library and Archives Associations Support the National Geographic Society In Digital Copyright Case (Filed 2004)
12 December 05
U.S. Supreme Court Declines to Hear Appeal
ALA, AALL, MLA and SLA filed an amici curiae (“friends of the court”) brief on November 17, in the U.S. Supreme Court in this case (titled Psihoyos v. National Geographic Enterprises [pdf] in the petition to the Supreme Court). The brief urged the Court to grant a petition for certiorari (appeal) and to affirm the decision by the U.S. Court of Appeals for the Second Circuit in favor of the National Geographic Society (NGS).
On December 12, however, the Supreme Court denied the petition for certiorari. The National Geographic Society had wanted the Supreme Court to hear the case, even though the NGS won in the appeals court in the Second Circuit. NGS had hoped the Court would rule in favor of NGS and, by doing so, resolve a confusing situation where two federal courts of appeals (the other being the Eleventh Circuit, see below) have issued conflicting opinions about this provision of copyright law.
The U.S. Court of Appeals for the Second Circuit issued an opinion in Faulkner v. National Geographic Society, ruling in favor of the NGS. The case concerns whether publishers of collective works and others who may choose to legitimately digitize them can re-publish those works in a digital format without seeking permission of authors or other contributors. Several freelance photographers, as well as some writers, sued the National Geographic Society (NGS) for copyright infringement because some of their works are included in a CD-ROM produced by the NGS. The CD-ROM contains photo-scanned images of the entire print version of the National Geographic magazine from 1888 to 1996 in a searchable format. A lower court found that the publication on CD-ROM is permissible under the Copyright Act. The library and archives associations filed an amici curiae (friends of the court) brief asking the U.S. Court of Appeals for the Second Circuit to affirm that decision, which it has. The case may now be appealed to the U.S. Supreme Court.
In June 2004, six library and archives associations asked to file an amici curiae (friends of the court) brief in Faulkner v. National Geographic Society, a case in the U.S. Court of Appeals for the Second Circuit. The case has major implications for projects that involve retrospective digitization of print versions of scholarly materials and the public's access to those materials. In the brief, the American Association of Law Libraries (AALL), American Library Association (ALA), Association of Research Libraries (ARL), Medical Library Association (MLA), Society of American Archivists (SAA), and Special Libraries Association (SLA) state that, "the decision will … have profound consequences for the library and archival communities and those who use collective works." The oral arguments in the case were heard on October 27. link to pdf of brief
At stake in the case is whether publishers of collective works and others who may choose to legitimately digitize them can re-publish those works in a digital format without seeking permission of authors or other contributors. Several freelance photographers, as well as some writers, sued the National Geographic Society (NGS) for copyright infringement because some of their works are included in a CD-ROM produced by the NGS. The CD-ROM contains photo-scanned images of the entire print version of the National Geographic magazine from 1888 to 1996 in a searchable format. A lower court found that the publication on CD-ROM is permissible under the Copyright Act. The library and archives associations are asking the U.S. Court of Appeals for the Second Circuit to affirm that decision.
The associations filed the amicus brief due to their concern that a reversal of the lower court decision would thwart efforts to digitize selected library collections, thus reducing access to these important resources by the public. The associations support the decision by Judge Kaplan of the U.S. District Court for the Southern District of New York that the Copyright Act permits the NGS to reproduce and distribute, through the CD-ROM compilation, the copyrighted materials that appeared in the original issues of the magazine. Judge Kaplan found that as long as digital versions place photographs and articles in the same context as the print original, there is no infringement of copyright. Thus the District Court determined that the fact that articles and photographs appear in a new medium makes no difference to the case. http://www.arl.org/info/ctcases/faulkner.pdf
Faulkner v. National Geographic Society differs considerably from New York Times v. Tasini, in which the Supreme Court affirmed the copyright privileges of freelance writers whose works were originally published in newspapers and periodicals and then licensed by the publishers to commercial electronic databases. The associations believe the Copyright Act permits publishers, libraries, archives, and the public to take advantage of new technologies to preserve and distribute creative works to the public if no changes are made to the original work once republished in a different format.
Libraries and other public interest and consumer organizations, led by the organization Public Knowledge, challenged the ruling through litigation in the U.S. Court of Appeals for the D.C. Circuit. The petition for review argued that the FCC acted both in excess of its statutory authority and contrary to the factual evidence in the record, and asked the Court to set aside the FCC's order.
Petition to the U.S. Court of Appeals [pdf]
The petitioners (the challengers) were the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Public Knowledge, Consumer Federation of America, Consumers Union and Electronic Frontier Foundation.
The appeals court heard oral arguments in the case in February 2005. On March 15, the court issued an order directing the library organizations to file affidavits by March 29 to answer questions about the standing of the organizations to bring the suit. The court noted that though the FCC had not challenged the standing of our groups, the Motion Picture Association of America had done so, and the court needed additional information in order to resolve the issue.
On March 29, we filed affidavits from a number of individuals, including librarians at Vanderbilt University, North Carolina State University, University of California-Los Angeles, and American University, and an ALA member who teaches at the American University. In each instance they explained and illustrated how the broadcast flag, if it goes into effect in July 2005, would hamper their use of broadcast materials for teaching and scholarship.
On May 6, the Court of Appeals issued a unanimous decision striking down the FCC’s rule. The court relied in large part on a declaration filed by Peggy Hoon, Scholarly Communication Librarian at N.C. State University, who explained the adverse impact that the flag would have on distance education activities at NCSU. We expect that there will be attempts by the entertainment industry to promote the introduction of legislation to overturn the court’s decision and we will be meeting with congressional staff to educate them on the issues.
June 17, 2004:
Oral arguments were held in the Eighth Circuit Court of Appeals.
January 23, 2004:
ALA joined with consumer and privacy groups in filing an amicus curiae, "friend of the court," brief with the U.S. Court of Appeals for the Eighth Circuit in support of Charter Communications, Inc.
ALA and the other major library associations again registered their support of an Internet Service Provider (ISP) resisting efforts by the Recording Industry Association of America (RIAA) to obtain the identities of ISP users that the RIAA alleges are infringing copyright. This case raises the same issue as RIAA v. Verizon and RIAA v. Pacific Bell Internet Service-the propriety of serving subpoenas without judicial oversight. The U.S. Court of Appeals for the D. C. Circuit ruled in favor of Verizon in December 2003.
Link to the brief [pdf]
ALA, along with the American Association of Law Libraries and the Association of Research Libraries, has joined in an amici curiae ("friends of the court") brief in the case of Pacific Bell Internet Services v. RIAA, in support of Pacific Bell. In a case very similar to RIAA v. Verizon, the RIAA has sued Pacific Bell in the U.S. District Court for the Northern District of California, to compel PacBell to comply with a subpoena to turn over the identities of PacBell Internet users who RIAA alleges are engaged in copyright infringement
As with the Verizon case, Pacific Bell is challenging the constitutionality of Section 512(a) of the Digital Millennium Copyright Act (DMCA) on the grounds that the law violates procedural due process - by requiring court clerks to issue subpoenas without judicial oversight - and the First Amendment right to anonymous speech of Internet users. The brief was filed on November 17, 2003.
The petition for certiorari, the court decisions and the briefs that have been filed to date all can be found at the Electronic Frontier Foundation web site: http://www.eff.org/IP/P2P/MGM_v_Grokster/
June 27 2005
Supreme Court clarifies Sony decision, fair use preserved
The American Library Association (ALA) applauded the Supreme Court's unanimous decision in MGM Studios, Inc. v. Grokster, LTD, hailing the ruling as a victory for libraries and consumers. The court remanded Grokster back to the district court for trial and in so doing re-affirmed the Sony Betamax principle. In the Sony case (1984), the Court held that the makers of the VCR should not be held liable for copyright infringement simply because the device could be used for infringing purposes. By affirming the decision made in Sony, the Supreme Court upheld the principle of fair use in the digital age.
Focusing its ruling on the inducement principle of patent law rather than on Sony, the Court clarified that peer-to-peer file sharing companies could be held responsible for copyright infringement only when they actively encourage infringement.
To view the Court opinion go to http://www.supremecourtus.gov/opinions/04slipopinion.html
The ALA joined the Internet Archive, the American Civil Liberties Union, and Project Gutenberg in an amicus brief before the U.S. Supreme Court in this case. The brief urged the court to consider the usefulness of peer-to-peer file sharing activities in the education and library arenas. In his concurrence Justice Breyer agreed with the library community that there are substantial non-infringing uses of peer-to-peer technologies. The Court articulated a standard for active inducement that emphasizes overt acts of purposeful culpable conduct "independent of design and distribution of the product." Liability can only be determined when companies take clear, active steps to foster infringement.
The 5 major U.S. library associations joined in an amici curiae (friends of the court) brief with the American Civil Liberties Union, the Internet Archive and Project Gutenberg. The U.S. Supreme Court will hear oral arguments in the case on March 29. PDF of the brief
All the briefs filed in the case can be found at http://www.eff.org/IP/P2P/MGM_v_Grokster/.
The U.S. Supreme Court has now granted the petition of the movie studios and record companies to hear an appeal from the Ninth Circuit’s decision. The briefs will be filed within the next few months.
October 8, 2004
This is a case in which record companies and movie studios sued distributors of peer-to-peer file-sharing computer networking software, alleging that the companies should be held liable for copyright infringement resulting from use of their software. The studios have now filed a petition with the U.S. Supreme Court seeking that court's review of an appeals court's decision in favor of the defendant peer-to-peer companies.
August 19, 2004
The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the defendant companies, which are distributors of peer-to-peer file-sharing computer networking software. The appeals court held that the defendants should not be held contributorily or vicariously liable for copyright infringements by the users of their software.
ALA and the other four major U.S. library associations joined in filing an amici curiae brief on September 26 in this case, which is on appeal in the U.S. Court of Appeals for the Ninth Circuit. The ACLU took the lead in writing the brief in support of the defendants, the companies Grokster and Morpheus, which offer peer-to-peer file-trading software.
The record companies and movie studios had sued the companies for contributory copyright infringement and vicarious liability. A U.S. district court in California applied the Ninth Circuit's holdings in its 2001 decision in the Napster case to the facts here, and concluded that Grokster and Morpheus could not be held secondarily liable for the infringements of users of their software. The district court also relied on the 1984 ruling of the U.S. Supreme Court in which the Supreme Court held that the makers of the Betamax video cassette recorder (the Sony Corporation) should not be held liable for copyright infringement simply because the device could be used for infringing purposes. The district court found that it was undisputed that there are substantial non-infringing uses for the file-sharing software, such as to share public domain materials and government documents.
The brief in the appeals court pointed out that the amici do not support the wrongful sharing of copyrighted materials. Instead, we believe the Supreme Court ruled correctly in the Sony/Betamax case. The court in that case created fair and practical rules which, if overturned, would as a practical matter give the entertainment industry a veto power over the development of innovative products and services. We argue that free speech and the public interest are best served by rules that allow new and innovative mediums of communication to develop and flourish.
October 12, 2004:
The U.S. Supreme Court denied the RIAA's petition asking that the Court review an appeals court decision in favor of Verizon.
In what has become a highly visible lawsuit, RIAA sued Verizon in 2003 to compel Verizon to comply with a subpoena to turn over the identities of Verizon Internet users who RIAA alleges were engaged in copyright infringement through "peer to peer" (P2P) file-sharing programs. The U.S. District Court for the District of Columbia ruled in favor of the RIAA.
Verizon then appealed the case to the U.S. Court of Appeals for the District of Columbia. ALA, along with the American Association of Law Libraries and the Association of Research Libraries and a number of other organizations, joined in an amici curiae ("friends of the court") brief, in support of Verizon.
In a unanimous three-judge decision issued December 19, 2003, the appeals court reversed the lower court decision and ruled in favor of Verizon. The court held that the Digital Millennium Copyright Act (DMCA) does not authorize the issuance of a subpoena to an Internet service provider (ISP) acting only as a conduit for data transferred between two Internet users, such as person sending and receiving e-mail or sharing P2P files.
The case concerns whether a communications service provider acting as a "mere conduit" under Section 512(a) of the DCMA must comply with a subpoena issued under Section 512(h). Initially, the case focused on statutory construction -- did 512(h) apply to mere conduits, or did it only apply to providers of hosting and linking services under Sections 512(c) and (d)? The district court ruled that 512(h) in fact did apply to mere conduits such as Verizon.
When the RIAA served a second subpoena on Verizon, Verizon raised constitutional issues, which the US District Court judge ordered the parties to brief. Verizon argued that the clerk of court lacked the power under Article III of the Constitution to issue a subpoena unless a lawsuit had been filed. Verizon further argued that Section 512(h) as interpreted by the district court threatened its subscribers' First Amendment and privacy rights.
The district court rejected these arguments as well, and Verizon appealed the decisions with respect to both subpoenas to the US Court of Appeals for the DC Circuit. The argument to the appeals court essentially was that the DMCA as interpreted by the district court would allow a private party the power to invoke judicial process (the subpoena issued by a clerk of the court) to demand identifying information about another person, without a lawsuit having been filed or even representation that suit is imminent. Moreover, under this interpretation of the DMCA identifying information would have to be provided by the Internet service provider to the copyright owner without notice to the subject of the subpoena (the Internet user) or an opportunity for that person to be heard, and without a federal judge's oversight.
The amicus brief, which was filed in May 2003, focused on the constitutional and privacy issues, not the statutory construction of the DMCA (which was addressed by Verizon in its brief). After the filing of the briefs, Verizon had to turn over the identities (the appeals court refused to stay the lower court order to do so), but the case remained active and the oral arguments were heard in September 2003. In the meantime, controversy continued to surround the case as RIAA filed hundreds of subpoenas against Internet Service Providers and universities in order to learn the identities of individuals alleged to be engaged in infringement of copyrighted music.
Court of Appeals decision
The court concluded from its analysis of the terms and structure of Section 512(h) that "a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity."
The RIAA has not stated whether it will appeal the decision of the appeals court, but we can be sure that RIAA will turn to Congress for help as strongly directed by the court of appeals. The court observed that there is much at stake for the entertainment and software industries "and their role in fostering technological innovation and our popular culture." Pointing out that committees of Congress are currently considering how best to deal with the threat of P2P file-sharing schemes, the court stated: "The plight of copyright holders must be addressed in the first instance by the Congress."
- December 19, 2003: The U.S. Court of Appeals' opinion [PDF]
- August 11, 2003: ALA, AALL, ARL amici curiae [PDF]
- For a complete history and documents from this case go to The Electronic Frontier Foundation Web site.
On June 2, 2003, the U.S. Supreme Court ruled unanimously in favor of Dastar, whose position ALA had supported in an amici curiae (friends-of-the-court) brief.
A petition for Supreme Court hearing was filed 2 June 2003. On 16 June, the court rejected the petition.
ALA joins in an amici curiae (friends-of-the-court) brief to the U. S. Court of Appeals for the Federal Circuit. Link to the brief
The libraries join in an amici curiae (friends-of-the-court) brief to the Supreme Court that challenges the constitutionality of The Copyright Term Extension Act.
ALA joins in an amici curiae (friend-of-the-court) brief to the Supreme Court in this case that relates to the copyright privileges of freelance writers.