Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions on Verizon

1.  Forget about the law for a moment.  Think about the Internet and the Web as they operate in practice.

How do the vast majority of consumers connect to the Internet?  Do they have their own Internet "nodes" or "gateways"?  their own T-1 lines (high-speed telephone lines used as node "gateways")?  their own direct connection to another Internet gateway?

Don't they connect through ISPs, just as the unknown target of the subpoena in Verizon did?  The price of servers (computers designed for direct connections) and server software has fallen dramatically in recent years.  So weren't even fewer users connected directly, rather than through ISPs, in 1998, when Congress passed the Digital Millennium Copyright Act?

2.  If the vast majority of consumers connected to the Internet and the Web indirectly, through ISPs, what was the primary purpose of Section 512(h)?  Wasn't it generally to "out" infringers who hide behind their ISPs, using anonymity, false screen names, redirected e-mail addresses, and the like?  See: S. Rep. No. 105-190, 105th Cong., 2d Sess. 51 (May 11, 1998) (subpoena power is intended to allow copyright owner to "obtain an order for identification of alleged infringers who are users of a service provider's system or network") (emphasis added); H. R. Rep. No. 551 (Part 2), 105th Cong., 2d Sess., 20 (July 22, 1998) (same).

3.  The legislative history of Section 512(h) is sketchy, consisting of two paragraphs each in the Senate and House Reports.  But both Reports, as quoted above, suggest that Congress intended Section 512(h) to provide a general subpoena power, with few or no technological limitations.

Undoubtedly Congress knew nothing of the peer-to-peer technology not yet developed, as the Verizon court points out.  But what about other means of using ISPs, even then commonly known, that don't involve storage of users' material on the ISP's servers?

When you have an e-mail account with an ISP, the ISP must store incoming messages for you.  (Otherwise, you wouldn't be able to access them on demand.)  Yet outgoing messages are another story.  As many of you may know from bitter experience, some ISPs do not automatically store outgoing messages.  Some will do so if you ask them to, and some make it difficult or impossible.  Often you have to resort to such expedients as sending a "cc" or "bcc" to your own mailbox in order to retain a copy of each outgoing message.

If your ISP does not store your outgoing messages on its own servers, then isn't your e-mail in the same position, with regard to the Verizon's court's conclusions, as the peer-to-peer technology that it discussed?  Isn't your ISP acting as a mere "conduit" for your outgoing messages, and therefore not subject to Section 512(h), as least according to the Verizon court's reasoning?  Does that mean that you can send anonymously as many infringing messages to your friends as you like without fear that your ISP will be forced to disclose your identity?  Is it possible that Congress intended to enact a general subpoena power with such a yawning loophole?

4.  So much for congressional intent.  Now look at Section 512.  The text has many flaws in drafting, too numerous to recount here.  See Jay Dratler, Jr., Cyberlaw: Intellectual Property in the Digital Millennium § 6.03[3] (Law Journal Press 2000, updated seminannually).  Some of the most important flaws, however, relate to the fact that the notice-and-takedown procedure in subsection (c)(3) appears only in one of the four subsections ((a) through (d)), which cover the various activities eligible for the limitations on remedies of Section 512.  Subsection (c), which covers activities loosely described as "posting," is the paradigmatic activity appropriate for the notice-and-takedown procedure: if an ISP posts it, the ISP can take it down.  (Think of infringing material posted on a BBS or bulletin board system, or on a Website, operated by the ISP.)

As the Verizon court notes, however, subsections (b)(2)(E) and (d)(3) contain cross-references to subsection (c)(3), which also invoke the notice-and-takedown procedure for activities under subsection (b) and subsection (d).  These activities, respectively, may be referred to loosely as "caching" and "linking."   See generally, Dratler, supra, § 6.03 (introduction) (discussion simplified terminology and intent that § 512 operate independently for each type of activity).  

Some conceptual difficulty may arise in applying a procedure developed for "posting" to the technologically and operationally distinct activities of "caching" and "linking."  For example, if the material to which a link refers is infringing, must the ISP "take down" just the link or the infringing material?  Does the statutory language provide a clear answer?  See § 512(d)(3); Dratler, supra, § 6.03[2][b].  Also, is "taking down" material from a caching system in response to a court order technically feasible if the material, whether legally or not, remains "up" on the cached site?  Does it matter that, as the statute itself requires, caching is an "automatic technical process" and indeed must be so to operate in "real time"?  See § 512(b)(1)(C); Dratler, supra, 6.03[1][b][ii].

Yet whether or not the procedure is technically or operationally feasible, subsection (b)'s and subsection (d)'s cross-references to subsection (c)(3) do make clear that the notice-and-takedown procedure of subsection (c)(3) is at least relevant to subsections (b) and (d).  In contrast, the absence of any similar cross-reference in subsection (a) suggests that the subsection (c)(3) procedure does not apply to the activities it covers.

Do practical considerations corroborate or undermine the absence of such a cross-reference in subsection (a)?   Would it be possible, even in theory, for an ISP to "take down" material routed and transmitted through its system that is stored, if at all, only on an "intermediate and transient" basis?

5.  Once one concludes that the notice-and-takedown procedure of subsection (c)(3) is neither legally or practically applicable to subsection (a) activities, then the fatal drafting flaw in subsection (h)—one of many in Section 512 as a whole—becomes apparent.  If subsection (h) requires a subsection (c)(3) notice, as the three cross-references to subsection (c)(3) in subsection (h) suggest, and if giving that notice is not legally required and may be practically impossible, then doesn't the text and structure of the statute suggest that subsection (h) subpoenas do not apply to subsection (a) activities?

There is even a further reason for this conclusion, which the Verizon court does not address.  To whom would a subsection (c)(3) notice be given?  A subpoena may be served on any appropriate representative of the ISP, but the statute requires an ISP desiring to enter Section 512's "safe harbor" to designate, and to notify the public of, a special representative to receive subsection (c)(3) notices.  See § 512(c)(2).  Furthermore, the statute does not cross-reference this requirement to designate an agent for receipt of section (c)(3) notices in any other subsection of Section 512.  The statute's failure to require designation of such an agent for subsection (a) activities suggests that subsection (a) activities are not subject to the notice-and-takedown procedure and therefore not subject to subsection (h).   (For other possible conclusions and the reasoning behind them, See Dratler, supra, § 6.02[2][b].)

6.  One can quibble with the Verizon court's conclusion that its interpretation of subsection (h) is "clear" from the statute's text and structure.  (Is anything about Section 512 clear?)  Yet the statute's execrable drafting—and even some practical considerations—suggest that subsection (h) as drafted does not apply to subsection (a) activities.  When Congress' intent seems to clash with a statute's bad drafting, what should the courts do?

7.  There is considerable evidence—and no member of Congress seems to have publicly denied—that key provisions of the Digital Millennium Copyright Act, especially Section 512, were drafted largely by lawyers and lobbyists for copyright owners and producers, on the one hand, and those for the computer industry (including ISPs) on the other.  Then the agreement reached by the lawyers and lobbyists was "blessed" by Congress.   For about a decade, this procedure appears to have been the general pattern for complex copyright legislation.  See Dratler, supra, Preface, § 3.02, § 6.03[3].  What effect, if any, should this drafting process have on whether courts defer to a congressional intent that does not appear to match the statutory language?

8.  In contract law, there is a doctrine known by the Latin phrase "contra proferentem."  As the English translation ("against the person proffering [it]") suggests, the doctrine encourages courts, in the event of ambiguity, to interpret contracts against their drafters.

This doctrine is no stranger to intellectual property cases.  It arises, for example, in cases interpreting license agreements.  See Intel Corp. v. VIA Technologies, Inc., 319 F.3d 1357, 1364 (Fed. Cir. 2003) (applying Delaware law).  But see S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088, 12 U.S.P.Q.2d (BNA) 1241 (9th Cir. 1989) (refusing to apply contra proferentem doctrine where it conflicted with federal doctrine that rights not explicitly granted are reserved).

It is clear from the Verizon court's opinion that the RIAA desperately wanted a broad interpretation of Section 512.  The history of Section 512 suggests that the RIAA participated in drafting the text of Section 512.  It is even possible that a representative of the RIAA took a leading role in that drafting.  If that is the case, is there rough justice in the D.C. Circuit's interpreting the muddled text of Section 512 "against the drafter"?  Should courts in the future take a similar approach to statutes drafted largely by lobbyists, especially if the text is overly complex, badly drafted, and confusing?

9.  While they wait for the next judicial shoe to drop, lawyers and the computer industry have the task of deducing the implications of the Verizon court's conclusions for other aspects of Section 512.  Perhaps the most important consequence is the legal status of subsection (a) activities.

An essential element of the Verizon court's reasoning was its conclusion that the subsection (c)(3) notice-and-takedown procedure simply does not apply to subsection (a) activities.  Does that mean that an ISP engaged only in subsection (a) activities can claim Section 512's limitations on remedies without appointing an agent to receive notice of infringement under subsection (c)(2)?  See Dratler, supra, § 6.02[2][b].  If so, is the limitation of remedies for subsection (a) activities virtually automatic?   See § 512(i); Dratler, supra, § 6.02[2].

Another important conclusion of the Verizon court is that the line between subsection (a) and other Section 512 activities depends on whether or not the infringing material is stored on the ISP's servers.  That conclusion provides a nice bright-line rule, but is it consistent with the statute's language?  Doesn't subsection (a) by its terms apply also to information that is stored on an ISP's servers on an "intermediate and transient" basis?  See § 512(a) (preamble).  Can the Verizon court's bright line be saved by interpreting the concept of server storage as storage on the ISP's servers on other than on an intermediate and transient basis?  If so, what do the words "intermediate and transient" mean, and how do they apply to the various technologies of "transmitting, routing, or providing connections for" Internet data?

10.  Is it appropriate and helpful for Congress (really, industry lobbyists) to have drafted a statute whose interpretation depends upon so much technical detail?  Would it have been better for Congress to have enunciated broad, general principles and let courts apply them?  If you think so, can you suggest broad general principles for subsection (h) subpoenas?  for limitations on service providers' liability?

11.  Despite the outcome in Verizon , the RIAA and its member companies are not entirely out of luck.  Although they cannot use the "vending machine" subpoenas of subsection (h) to catch peer-to-peer infringers, they still can resort to the age-old expedient of "John Doe" subpoenas issued after litigation has begun.  See RIAA v. Verizon Internet Services, Inc., 240 F. Supp. 2d 24, 2003 U.S. Dist. LEXIS 681, 65 U.S.P.Q.2d (BNA) 1574 (D.D.C. 2003), rev'd, 2003 U.S. App. LEXIS 25735 (D.C. Cir. 2003) (decision below, discussing and rejecting "John Doe" subpoenas as alternatives to subsection (h) subpoenas).  Although "John Doe" subpoenas put a greater procedural and administrative burden on plaintiffs than do the vending-machine subpoenas of subsection (h), they have an important procedural advantage for both defendants and targets: they involve judicial supervision at every step.  Is that perhaps an appropriate result?

12.   When they apply, subsection (h) subpoenas are served upon the ISP, but they do not require service upon or notice to the customer suspected of infringement.  One of the most basic principles of constitutional government is that valuable rights cannot be taken away without notice and an opportunity to be heard.   See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty and property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case").

Does an anonymous Internet user, whether by virtue of her contract with her ISP or by state law, have valuable rights to privacy and anonymity that cannot be taken away without notice and hearing?  Are those rights best characterized as "property" or "liberty" interests?  Does the vending-machine subpoena procedure of subsection (h) provide for any notice to or hearing of the Internet user suspected of infringement?  If not, does forcing the ISP to divulge the user's identity in response to a subsection (h) subpoena violate the Due Process Clause?  Does the ISP have standing to raise the user's due-process rights as it seeks to quash a subpoena?   See Dratler, supra, § 6.05.

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