In July 2002, the Recording Industry Association of America (RIAA) demanded that Verizon Online reveal the identity of a customer whom the RIAA alleged had copyrighted material on the user's personal computer. RIAA sent Verizon a subpoena that was not issued according to the requirements of the Digital Millennium Copyright Act, under which the alleged "infringing" copyrighted material must actually reside on Verizon's system or network for the subpoena to be valid. Because the alleged material would only be found on the user's hard drive, Verizon refused to comply with this invalid subpoena. The RIAA then sued Verizon to enforce the subpoena. In a decision issued on Jan. 21, U.S. District Court Judge John Bates ruled in favor of the RIAA. On Jan. 30, Verizon filed an appeal in the U.S. Court of Appeals and also filed for a stay of the judge's decision in District Court pending an appeal.

Verizon appealed the court's decision because it opens the door for anyone who makes a mere allegation of copyright infringement to gain complete access to private subscriber information without the due process protections afforded by the courts.

The following summarizes Verizon's position on this issue.

• Verizon does not condone copyright piracy. This decision distorts the carefully balanced compromise between copyright owners, service providers and Internet users in Section 512 of the Digital Millennium Copyright Act. Verizon is opposing this to protect the privacy rights of the vast majority of consumers who are NOT engaged in illegal activity.

• The decision raises serious privacy implications and due process concerns. It opens the door for any person claiming to own a copyright to submit a one-page form to a clerk of a court and obtain the unlimited ability to collect private subscriber information. This decision, if not overruled by the Court of Appeals, will become subject to numerous abuses and should not be left unanswered by Congress.

• The Digital Millennium Copyright Act (DMCA) clearly distinguished between the service provider acting as a host of third party content and the service provider acting as a mere conduit for communications.

• In the time since the DMCA was enacted, with few exceptions, content owners used the subpoena process very few times and only as the DMCA intended - for materials residing on the service provider's system or network. Unfortunately, RIAA purposefully brought this test case against Verizon to solve a new business problem with file sharing that clearly was never intended to be covered by the DMCA.

• Copyright owners do have a remedy today if they believe that an Internet user is infringing copyrights. They are free to file a so-called "John Doe" lawsuit against that individual and ask a judge to issue a subpoena to the service. RIAA has chosen not exercise this remedy.

• It is likely that RIAA's initial request for information about one subscriber will be followed by requests from people claiming to be copyright owners for thousands of subscribers' identities based on allegations of infringing activity. Allowing this type of subpoena would result in all kinds of abuses of Internet users' privacy and due process rights.

• This decision has garnered global media attention with the press calling upon Congress to make sure that user's privacy rights are balanced against the tools of fighting piracy. Congress must not allow copyright owners to trample upon users' privacy rights. We must preserve the balance among all stakeholders and discourage attempts by copyright owners to shift liabilities and burdens for protecting their copyrights onto third parties.

Digital Millennium Copyright Act (DCMA)

• Under the DMCA, a service provider is required to remove allegedly infringing material only when such material is stored on its system.

• The DMCA created special protections for consumers when their materials were wrongly taken down. The consumer is given the ability to submit a "put back" notice and have their material placed back on the service provider's system.

• The DMCA only required the service provider to comply with a subpoena seeking the subscriber's identity when the material alleged to infringe copyrights was actually stored on the service provider's system. In contrast, when the service provider acts as a conduit for third party communications (email, surfing the web, attaching files), the DMCA provides no obligation to respond to subpoenas or remove material. In such cases, there is no content for the service provider to review or remove because such content, if it exists, would reside on the user's computer, not on the service provider's network.

• This decision also will result in broader use by copyright owners of the DMCA subpoena procedure to obtain the identities of service providers' customers regardless of the communication function performed by the ISP (providing Internet access, hosting, hyperlinks, etc.). This will have a chilling effect on private communications, such as sending e-mail, surfing the Internet or sending files between private parties.

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