In re DMCA Subpoena to University NC

Case Title and Citation:  In re Subpoena to Univ. of N.C. at Chapel Hill, 367 F.Supp.2d 945 (M.D.N.C.2005)

Court: United States District Court, Middle District North Carolina

Document status: Order Granting Jane and Jon Doe’s Motion to Quash the RIAA’s DMCA Subpoena(s)

Issue or relevant point(s): Does Section 512(h), under statutory construction precedence, provide grounds to serve a DMCA subpoena to a service provider operating under safe harbor § 512(a) functionality in order to obtain infringer identification information?

Ruling:  The Court denied the RIAA’s subpoena request, and granted both Does Motion to Quash

The RIAA sought DMCA subpoenas for serving upon the University of North Carolina at Chapel Hill (UNC) and North Carolina State University (NCST).  UNC and NCST were both ISP’s in the context of its function of providing internet access to students, in this case “Hulk” (John Doe, student at UNC) and “CadillacMan” (Jane Doe, student at NCST).

The DMCA subpoena request(s) by the RIAA identified the students as using the ISP’s to download (or otherwise share) with other users a number of computer files containing copyrighted songs.  In order to determine what further action to undertake, the RIAA sought identification information in the form of names, addresses, phone numbers, and email addresses.

Initially, the clerk of the Middle District NC issued the subpoenas, and both UNC and NCST appeared willing to comply.  However, upon notification to both Does, each subsequently filed a Motion to Quash.  In addition, once the Verizon opinion issued, both UNC and NCST also filed Motions to Quash[1]

The Court first gave an initial summary discussion as to the DMCA and its provisions (e.g., safe harbors, monetary relief, notice-and-takedown, DMCA subpoena, etc.) as well as the ‘balance’ effort it sought to provide.  The Court noted that evolving technology, namely the ‘Peer-to-Peer’ systems, now allows users to access each other’s computers, instead of accessing a “bulletin board” and the like.  Thus, no ‘website’ is involved, and only internet access is required.

In order for a claimant to pursue an alleged infringer, it must be able to identify the infringer – this can be done by obtaining the internet protocol (“IP”) address associated with a respective ISP user.  And only the ISP can provide this information, thus resulting in the RIAA’s DMCA subpoena request.

Analysis Summary
Although the Motions raised a number of points, the Court mainly focused on the statutory construction of § 512(h) as to its applicability of an ISP providing functionality falling under the § 512(a) safe harbor.

The Court provided:
“In determining whether the subpoenas in this case were authorized by the DMCA, the Court begins by looking at the language of the statute itself in order to determine whether its meaning is plain and unambiguous.  Holland v. Big River Minerals Corp., 181 F.3d 597, 603 (4th Cir.1999), cert, denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000).

In making this determination, the Court should be guided by the context surrounding the language in question, along with the broader context of the statute as a whole. Id.  If, after this review, the Court finds the statutory language in question to be ambiguous, it may look to the legislative history to determine Congressional intent and, if that is not apparent, then it may apply the traditional tools of statutory construction. Id.

The Court recognized, much akin to Verizon, that in order for the clerk to issue a DMCA subpoena, a requestor must submit a notification in compliance with 17 U.S.C. § 512(c)(3)(A), which further requires ‘information reasonably sufficient to permit the service provider to locate the material’.

In this particular case, as in any ‘conduit’ case, the ISP’s merely provides transitory digital communication via internet access – thus there is no ‘stored material’ to be removed or access disabled.  As a result, it necessarily followed that the RIAA could not comply with the requirements of § 512(h).

The Court was unpersuaded by the RIAA’s construction argument, and further noted:
“Two courts of appeals have concluded the subpoena provisions do not apply to Section 512(a) service providers.  The District of Columbia was first.  Verizon, 351 F.3d 1229.  It held that Section 512(h) does not apply to Section 512(a) service providers, but rather “is structurally linked to the storage functions of an ISP and not to its transmission functions, such as those listed in § 512(a).” Id. at 1237.  

Having concluded that the explicit provisions of Section 512(h) did not authorize the issuance of a subpoena to mere transmitting service providers, the D.C. Circuit found no need to examine legislative history.  In any event, it found that history showed that P2P data exchange was not contemplated at the time the statute was written and, therefore, the court concluded that it would not be proper for a court to rewrite the DMCA in order to have it “fit a new and unforeseen internet architecture.””  Id. at 1238.

The Court viewed its construction of 512(h) supported by tenets of statutory construction precedent.
It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989).  A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), and "fit, if possible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959).  Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

In looking at the statute's core objectives, the District of Columbia Court necessarily found the objective of the DMCA subpoena provisions concerned the storage functions of an ISP and not the transmission functions. The RIAA would argue that this scope is too narrow and that the Court should look to the larger concern of copyright violations arising as a result of internet activity.
While the RIAA's argument at first blush is tempting, the Court rejects it because it would necessarily amount to the rewriting of the statute. A court is only authorized "to apply the provision as written, not as we would write it." See, e.g., Badaracco v. Commissioner of Internal Revenue, 464 U.S. 386, 398, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984); United States v. Demerritt, 196 F.3d 138, 143 (2d Cir.1999). It may not "improve," insert "additional, material terms," eliminate "incongruity," or alter "imprecise enactments." Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245, 1255 (11th Cir.), cert. denied sub nom, Wright v. Crosby, 538 U.S. 906, 123 S.Ct. 1511, 155 L.Ed.2d 225 (2003); Texaco Inc. v. Duhe, 274 F.3d 911, 920 (5th Cir.2001); United States v. Pacheco, 225 F.3d 148, 155 (2d Cir.2000), cert. denied, 533 U.S. 904, 121 S.Ct. 2246, 150 L.Ed.2d 234 (2001); Lanier v. District of Columbia, 871 F.Supp. 20, 23 (D.D.C.1994).  Another iteration of the same point colorfully states that: Congress has put down its pen, and we can neither rewrite Congress' words nor call it back to "cancel half a line."  Our task is to interpret what Congress has said.... Director, Officer of Workers' Compensation Programs v. Rasmussen, 440 U.S. 29, 47, 99 S.Ct. 903, 59 L.Ed.2d 122 (1979).
Williams v. United States, 240 F.3d 1019, 1037 (Fed.Cir.2001).

The Court felt that the RIAA’s construction would result in a leap in the current duty of the Clerk, namely, ensure the DMCA notification complies with § 512(c)(3)(A).  If a DMCA notification could be used for § 512(a) ISP’s, it would require the Clerk to go beyond the mere ministerial duty required of it in order to ensure said notification was in compliance with the requirements of (c)(3)(A).

Instead, the Court believed it was clear the crafters of § 512(h), without an express indication otherwise, intended the DMCA subpoena process to be constrained to service providers operating under § 512(c) safe harbor functionality.[2]

The Court next looked specifically at an argument raised by Jane Doe pertaining to a question of venue.  Specifically, Jane Doe argued venue for the subpoena was controlled by 28 U.S.C. § 1391, whereas the RIAA argued 1391 applied to civil actions – and that § 512(h) provides the right to obtain a subpoena in any district court.

The Court reiterated it’s constitutional concerns with § 512(h), as well as the overly broad construction suggested by the RIAA.  The Court elaborated:

“With the advent of federal nationwide service of process statutes has come a greater recognition that an assertion of jurisdiction over persons on that basis must comport with the Due Process Clause of the Fifth Amendment.  ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir.1997), cert. denied, 523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998); In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 298 (3d Cir.2004).  Some courts would find that due process is satisfied so long as the individual has minimum contacts with any place within the United States, but others would require more.  Medical Mut. of Ohio v. deSoto, 245 F.3d 561, 568 n. 4 (6th Cir.2001)(collecting cases).  The Fourth Circuit, in particular, finds that due process protects an individual's liberty interests against unfair burden and inconvenience.  It has noted that federal venue statutes provide the primary protection against undue burden and that it likely would require an unusual case for a constitutional violation to arise.  ESAB Group, 126 F.3d at 627; see also Peay v. BellSouth Medical Assistance Plan, 205 F.3d 1206, 1212 (10th Cir.2000).  However, in the present situation, because no case has been filed, there are no fallback venue statutes to ease the burden.”
To start, one must distinguish nationwide service of process from both jurisdiction and venue. Id.  See Willingway Hosp. Inc. v. Blue Cross & Blue Shield of Ohio, 870 F.Supp. 1102 (S.D.Ga.1994).  The fact that a party may be served at any place in the country does not mean that every court has jurisdiction over the matter and venue is proper everywhere.  A court should take care to keep these distinctions in mind and be careful to note whether Congress specifically was authorizing jurisdiction.  Willingway, 870 F.Supp. at 1107-1108.  Finally, "the subpoena power of a court cannot be more extensive than its jurisdiction." 487 U.S. 72, 74, 108 S.Ct. 2268, 101 L.Ed.2d 69 U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988).

In the instant case, Section 512(h) says that the copyright owner or agent can seek a subpoena from any district court, but does not say that every district court has jurisdiction to issue a subpoena compelling action from persons outside of the district.  Without an explicit indication from Congress that such was the intention of the language, the Court will not infer it.  The RIAA has pointed to nothing to convince the Court otherwise.  Because of the potential for misuse, it is unlikely Congress would have granted such sweeping jurisdiction without discussion.  Allowing private parties to use the power of federal courts to gather private information ex parte in absence of litigation or contemplated litigation (contrast Fed.R.Civ.P. 27) is an extraordinary event in itself without construing Section 512(h) as being a nationwide venue and jurisdiction statute.”

The Court did not come to any definitive conclusion as to the venue/jurisdiction issue associated with § 512(h).  Instead it ultimately believed any DMCA subpoena must be issued and served within the same district.  Here, the RIAA had the subpoena issued in the Middle District, but served in the Eastern District (where NCST is located), hence the subpoena was quashed.

The Court agreed with other circuits that constructed § 512(h) as being inapplicable to ISP’s operating under § 512(a) safe harbor functionality.  In its construction, it relied on the fact that the legislative history indicates the clerk function is intended to be ministerial, and any construction of § 512(h) that increases the complexity of the clerk’s function is unsupported.

The Court then contradicts itself by inferring § 512(h) must invoke a venue/jurisdiction assessment (requiring the clerk to perform a beyond-ministerial function).

It is worth noting this case was decided pre-2013 amendments to Rule 45 (which, among another things, removed the 100 mile limitation of 45(b)(2)).  Today, this part of the Rule states: "A subpoena may be served at any place within the United States."

[1] Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1233 (D.C.Cir.2003), cert. denied, 543 U.S. 924, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004).
[2] Although not of relevance for this case, the Court also recognized § 512(h) may apply to (b) and (d) safe harbor function.