Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc.

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2003 Decided December 19, 2003

No. 03-7015

RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.,

APPELLEE

v.

VERIZON INTERNET SERVICES, INC.,

APPELLANT

Consolidated with

03–7053

Appeals from the United States District Court

for the District of Columbia

(No. 02ms00323)

(No. 03ms00040)

Andrew G. McBride argued the cause for appellant. With

him on the briefs were John Thorne, Bruce G. Joseph, and

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Dineen P. Wasylik. Deanne E. Maynard entered an appear-

ance.

Megan E. Gray, Lawrence S. Robbins, Alan Untereiner,

Christopher A. Hansen, Arthur B. Spitzer, and Cindy Cohn

were on the brief for amici curiae Alliance for Public Tech-

nology, et al., in support of appellant.

Donald B. Verrilli, Jr. argued the cause for appellee

Recording Industry Association of America, Inc. With him

on the brief were Thomas J. Perrelli and Matthew J. Oppen-

heim.

Scott R. McIntosh, Attorney, U.S. Department of Justice,

argued the cause for intervenor-appellee United States.

With him on the brief were Roscoe C. Howard, Jr., U.S.

Attorney, and Douglas N. Letter, Attorney, U.S. Department

of Justice.

Paul B. Gaffney, Thomas G. Hentoff, Eric H. Smith,

Patricia Polach, Ann Chaitovitz, Allan R. Adler, Joseph J.

DiMona, Robert S. Giolito, and Chun T. Wright were on the

brief for amici curiae Motion Picture Association of America,

et al., in support of appellee Recording Industry Association

of America. David E. Kendall entered an appearance.

Paul Alan Levy, Alan B. Morrison, and Allison M. Zieve

were on the brief for amicus curiae Public Citizen.

Before: GINSBURG, Chief Judge, and ROBERTS, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: This case concerns the Recording

Industry Association of America’s use of the subpoena provi-

sion of the Digital Millennium Copyright Act, 17 U.S.C.

§ 512(h), to identify internet users the RIAA believes are

infringing the copyrights of its members. The RIAA served

two subpoenas upon Verizon Internet Services in order to

discover the names of two Verizon subscribers who appeared

to be trading large numbers of .mp3 files of copyrighted

music via ‘‘peer-to-peer’’ (P2P) file sharing programs, such as

3

KaZaA. Verizon refused to comply with the subpoenas on

various legal grounds.

The district court rejected Verizon’s statutory and constitu-

tional challenges to § 512(h) and ordered the internet service

provider (ISP) to disclose to the RIAA the names of the two

subscribers. On appeal Verizon presents three alternative

arguments for reversing the orders of the district court: (1)

§ 512(h) does not authorize the issuance of a subpoena to an

ISP acting solely as a conduit for communications the content

of which is determined by others; if the statute does author-

ize such a subpoena, then the statute is unconstitutional

because (2) the district court lacked Article III jurisdiction to

issue a subpoena with no underlying ‘‘case or controversy’’

pending before the court; and (3) § 512(h) violates the First

Amendment because it lacks sufficient safeguards to protect

an internet user’s ability to speak and to associate anony-

mously. Because we agree with Verizon’s interpretation of

the statute, we reverse the orders of the district court

enforcing the subpoenas and do not reach either of Verizon’s

constitutional arguments.*

I. Background

Individuals with a personal computer and access to the

internet began to offer digital copies of recordings for down-

load by other users, an activity known as file sharing, in the

late 1990’s using a program called Napster. Although re-

cording companies and music publishers successfully obtained

an injunction against Napster’s facilitating the sharing of files

containing copyrighted recordings, see A&M Records, Inc. v.

Napster, Inc., 284 F.3d 1091 (9th Cir. 2002); A&M Records,

Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), millions of

people in the United States and around the world continue to

* The district court’s jurisdiction to issue the orders here under

review is not drawn into question by Verizon’s Article III argument.

See Interstate Commerce Comm’n v. Brimson, 154 U.S. 447, 476–78

(1894) (application of ICC to enforce subpoena issued by agency in

furtherance of investigation presents ‘‘case or controversy’’ subject

to judicial resolution).

4

share digital .mp3 files of copyrighted recordings using P2P

computer programs such as KaZaA, Morpheus, Grokster, and

eDonkey. See John Borland, File Swapping Shifts Up a

Gear (May 27, 2003), available at http://news.com.com/2100–

1026–1009742.html, (last visited December 2, 2003). Unlike

Napster, which relied upon a centralized communication ar-

chitecture to identify the .mp3 files available for download,

the current generation of P2P file sharing programs allow an

internet user to search directly the .mp3 file libraries of other

users; no web site is involved. See Douglas Lichtman &

William Landes, Indirect Liability for Copyright Infringe-

ment: An Economic Perspective, 16 HARV. J. LAW & TECH.

395, 403, 408–09 (2003). To date, owners of copyrights have

not been able to stop the use of these decentralized programs.

See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd.,

259 F. Supp. 2d 1029 (C.D. Cal. 2003) (holding Grokster not

contributorily liable for copyright infringement by users of its

P2P file sharing program).

The RIAA now has begun to direct its anti-infringement

efforts against individual users of P2P file sharing programs.

In order to pursue apparent infringers the RIAA needs to be

able to identify the individuals who are sharing and trading

files using P2P programs. The RIAA can readily obtain the

screen name of an individual user, and using the Internet

Protocol (IP) address associated with that screen name, can

trace the user to his ISP. Only the ISP, however, can link

the IP address used to access a P2P program with the name

and address of a person – the ISP’s customer – who can then

be contacted or, if need be, sued by the RIAA.

The RIAA has used the subpoena provisions of § 512(h) of

the Digital Millennium Copyright Act (DMCA) to compel

ISPs to disclose the names of subscribers whom the RIAA

has reason to believe are infringing its members’ copyrights.

See 17 U.S.C. § 512(h)(1) (copyright owner may ‘‘request the

clerk of any United States district court to issue a subpoena

to [an ISP] for identification of an alleged infringer’’). Some

ISPs have complied with the RIAA’s § 512(h) subpoenas and

identified the names of the subscribers sought by the RIAA.

The RIAA has sent letters to and filed lawsuits against

5

several hundred such individuals, each of whom allegedly

made available for download by other users hundreds or in

some cases even thousands of .mp3 files of copyrighted

recordings. Verizon refused to comply with and instead has

challenged the validity of the two § 512(h) subpoenas it has

received.

A copyright owner (or its agent, such as the RIAA) must

file three items along with its request that the Clerk of a

district court issue a subpoena: (1) a ‘‘notification of claimed

infringement’’ identifying the copyrighted work(s) claimed to

have been infringed and the infringing material or activity,

and providing information reasonably sufficient for the ISP to

locate the material, all as further specified in § 512(c)(3)(A);

(2) the proposed subpoena directed to the ISP; and (3) a

sworn declaration that the purpose of the subpoena is ‘‘to

obtain the identity of an alleged infringer and that such

information will only be used for the purpose of protecting’’

rights under the copyright laws of the United States. 17

U.S.C. §§ 512(h)(2)(A)-(C). If the copyright owner’s request

contains all three items, then the Clerk ‘‘shall expeditiously

issue and sign the proposed subpoena and return it to the

requester for delivery to the [ISP].’’ 17 U.S.C. § 512(h)(4).

Upon receipt of the subpoena the ISP is ‘‘authorize[d] and

order[ed]’’ to disclose to the copyright owner the identity of

the alleged infringer. See 17 U.S.C. §§ 512(h)(3), (5).

On July 24, 2002 the RIAA served Verizon with a subpoena

issued pursuant to § 512(h), seeking the identity of a sub-

scriber whom the RIAA believed to be engaged in infringing

activity. The subpoena was for ‘‘information sufficient to

identify the alleged infringer of the sound recordings de-

scribed in the attached notification.’’ The ‘‘notification of

claimed infringement’’ identified the IP address of the sub-

scriber and about 800 sound files he offered for trading;

expressed the RIAA’s ‘‘good faith belief’’ the file sharing

activity of Verizon’s subscriber constituted infringement of its

members’ copyrights; and asked for Verizon’s ‘‘immediate

assistance in stopping this unauthorized activity.’’ ‘‘Specifi-

cally, we request that you remove or disable access to the

infringing sound files via your system.’’

6

When Verizon refused to disclose the name of its subscrib-

er, the RIAA filed a motion to compel production pursuant to

Federal Rule of Civil Procedure 45(c)(2)(B) and § 512(h)(6) of

the Act. In opposition to that motion, Verizon argued

§ 512(h) does not apply to an ISP acting merely as a conduit

for an individual using a P2P file sharing program to ex-

change files. The district court rejected Verizon’s argument

based upon ‘‘the language and structure of the statute, as

confirmed by the purpose and history of the legislation,’’ and

ordered Verizon to disclose to the RIAA the name of its

subscriber. In re Verizon Internet Servs., Inc., 240 F. Supp.

2d 24, 45 (D.D.C. 2003) (Verizon I).

The RIAA then obtained another § 512(h) subpoena direct-

ed to Verizon. This time Verizon moved to quash the subpoe-

na, arguing that the district court, acting through the Clerk,

lacked jurisdiction under Article III to issue the subpoena

and in the alternative that § 512(h) violates the First Amend-

ment. The district court rejected Verizon’s constitutional

arguments, denied the motion to quash, and again ordered

Verizon to disclose the identity of its subscriber. In re

Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 247, 275

(D.D.C. 2003) (Verizon II).

Verizon appealed both orders to this Court and we consoli-

dated the two cases. As it did before the district court, the

RIAA defends both the applicability of § 512(h) to an ISP

acting as a conduit for P2P file sharing and the constitutional-

ity of § 512(h). The United States has intervened solely to

defend the constitutionality of the statute.

II. Analysis

The court ordinarily reviews a district court’s grant of a

motion to compel or denial of a motion to quash for abuse of

discretion. See, e.g., In re Sealed Case, 121 F.3d 729, 740

(D.C. Cir. 1997). Here, however, Verizon contends the orders

of the district court were based upon errors of law, specifical-

ly errors regarding the meaning of § 512(h). Our review is

therefore plenary. See In re Subpoena Served Upon the

7

Comptroller of the Currency, 967 F.2d 630, 633 (D.C. Cir.

1992).

The issue is whether § 512(h) applies to an ISP acting only

as a conduit for data transferred between two internet users,

such as persons sending and receiving e-mail or, as in this

case, sharing P2P files. Verizon contends § 512(h) does not

authorize the issuance of a subpoena to an ISP that transmits

infringing material but does not store any such material on its

servers. The RIAA argues § 512(h) on its face authorizes

the issuance of a subpoena to an ‘‘[internet] service provider’’

without regard to whether the ISP is acting as a conduit for

user-directed communications. We conclude from both the

terms of § 512(h) and the overall structure of § 512 that, as

Verizon contends, 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.

A. Subsection 512(h) by its Terms

We begin our analysis, as always, with the text of the

statute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002). Verizon’s statutory arguments address the meaning

of and interaction between §§ 512(h) and 512(a)-(d). Having

already discussed the general requirements of § 512(h), we

now introduce §§ 512(a)-(d).

Section 512 creates four safe harbors, each of which immu-

nizes ISPs from liability for copyright infringement under

certain highly specified conditions. Subsection 512(a), enti-

tled ‘‘Transitory digital network communications,’’ provides a

safe harbor ‘‘for infringement of copyright by reason of the

[ISP’s] transmitting, routing, or providing connections for’’

infringing material, subject to certain conditions, including

that the transmission is initiated and directed by an internet

user. See 17 U.S.C. §§ 512(a)(1)-(5). Subsection 512(b),

‘‘System caching,’’ provides immunity from liability ‘‘for in-

fringement of copyright by reason of the intermediate and

temporary storage of material on a system or network con-

trolled or operated by or for the [ISP],’’ § 512(b)(1), as long

as certain conditions regarding the transmission and retrieval

of the material created by the ISP are met. See 17 U.S.C.

§§ 512(b)(2)(A)-(E). Subsection 512(c), ‘‘Information residing

8

on systems or networks at the direction of users,’’ creates a

safe harbor from liability ‘‘for infringement of copyright by

reason of the storage at the direction of a user of material

that resides on a system or network controlled or operated by

or for the service provider,’’ as long as the ISP meets certain

conditions regarding its lack of knowledge concerning, finan-

cial benefit from, and expeditious efforts to remove or deny

access to, material that is infringing or that is claimed to be

the subject of infringing activity. See 17 U.S.C.

§§ 512(c)(1)(A)-(C). Finally, § 512(d), ‘‘Information location

tools,’’ provides a safe harbor from liability ‘‘for infringement

of copyright by reason of the provider referring or linking

users to an online location containing infringing material or

infringing activity, by using information location tools’’ such

as ‘‘a directory, index, reference, pointer, or hypertext link,’’

subject to the same conditions as in §§ 512(c)(1)(A)-(C). See

17 U.S.C. §§ 512(d)(1)-(3).

Notably present in §§ 512(b)-(d), and notably absent from

§ 512(a), is the so-called notice and take-down provision. It

makes a condition of the ISP’s protection from liability for

copyright infringement that ‘‘upon notification of claimed

infringement as described in [§ 512](c)(3),’’ the ISP ‘‘responds

expeditiously to remove, or disable access to, the material

that is claimed to be infringing.’’ See 17 U.S.C.

§§ 512(b)(2)(E), 512(c)(1)(C), and 512(d)(3).

Verizon argues that § 512(h) by its terms precludes the

Clerk of Court from issuing a subpoena to an ISP acting as a

conduit for P2P communications because a § 512(h) subpoena

request cannot meet the requirement in § 512(h)(2)(A) that a

proposed subpoena contain ‘‘a copy of a notification [of

claimed infringement, as] described in [§ 512](c)(3)(A).’’* In

* Subsection 512(c)(3)(A) provides that ‘‘[t]o be effective under

this subsection, a notification of claimed infringement must be a

written communication TTT that includes substantially the follow-

ing’’:

(i) A physical or electronic signature of a person authorized to

act on behalf of the owner of an exclusive right that is allegedly

infringed.

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particular, Verizon maintains the two subpoenas obtained by

the RIAA fail to meet the requirements of § 512(c)(3)(A)(iii)

in that they do not – because Verizon is not storing the

infringing material on its server – and can not, identify

material ‘‘to be removed or access to which is to be disabled’’

by Verizon. Here Verizon points out that § 512(h)(4) makes

satisfaction of the notification requirement of § 512(c)(3)(A) a

condition precedent to issuance of a subpoena: ‘‘If the notifi-

cation filed satisfies the provisions of [§ 512](c)(3)(A)’’ and the

other content requirements of § 512(h)(2) are met, then ‘‘the

clerk shall expeditiously issue and sign the proposed subpoe-

na TTT for delivery’’ to the ISP.

Infringing material obtained or distributed via P2P file

sharing is located in the computer (or in an off-line storage

(ii) Identification of the copyrighted work claimed to have been

infringed, or, if multiple copyrighted works at a single online

site are covered by a single notification, a representative list of

such works at that site.

(iii) Identification of the material that is claimed to be infring-

ing or to be the subject of infringing activity and that is to be

removed or access to which is to be disabled, and information

reasonably sufficient to permit the service provider to locate

the material.

(iv) Information reasonably sufficient to permit the service

provider to contact the complaining party, such as an address,

telephone number, and, if available, an electronic mail address

at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith

belief that use of the material in the manner complained of is

not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is

accurate, and under penalty of perjury, that the complaining

party is authorized to act on behalf of the owner of an exclusive

right that is allegedly infringed.

17 U.S.C. § 512(c)(3)(A).

10

device, such as a compact disc) of an individual user. No

matter what information the copyright owner may provide,

the ISP can neither ‘‘remove’’ nor ‘‘disable access to’’ the

infringing material because that material is not stored on the

ISP’s servers. Verizon can not remove or disable one user’s

access to infringing material resident on another user’s com-

puter because Verizon does not control the content on its

subscribers’ computers.

The RIAA contends an ISP can indeed ‘‘disable access’’ to

infringing material by terminating the offending subscriber’s

internet account. This argument is undone by the terms of

the Act, however. As Verizon notes, the Congress considered

disabling an individual’s access to infringing material and

disabling access to the internet to be different remedies for

the protection of copyright owners, the former blocking ac-

cess to the infringing material on the offender’s computer and

the latter more broadly blocking the offender’s access to the

internet (at least via his chosen ISP). Compare 17 U.S.C.

§ 512(j)(1)(A)(i) (authorizing injunction restraining ISP ‘‘from

providing access to infringing material’’) with 17 U.S.C.

§ 512(j)(1)(A)(ii) (authorizing injunction restraining ISP

‘‘from providing access to a subscriber or account holder TTT

who is engaging in infringing activity TTT by terminating the

accounts of the subscriber or account holder’’). ‘‘[W]here

different terms are used in a single piece of legislation, the

court must presume that Congress intended the terms have

different meanings.’’ Transbrasil S.A. Linhas Aereas v.

Dep’t of Transp., 791 F.2d 202, 205 (D.C. Cir. 1986). These

distinct statutory remedies establish that terminating a sub-

scriber’s account is not the same as removing or disabling

access by others to the infringing material resident on the

subscriber’s computer.

The RIAA points out that even if, with respect to an ISP

functioning as a conduit for user-directed communications, a

copyright owner cannot satisfy the requirement of

§ 512(c)(3)(A)(iii) by identifying material to be removed by

the ISP, a notification is effective under § 512(c)(3)(A) if it

‘‘includes substantially’’ the required information; that stan-

dard is satisfied, the RIAA maintains, because the ISP can

11

identify the infringer based upon the information provided by

the copyright owner pursuant to §§ 512(c)(3)(A)(i)-(ii) and

(iv)-(vi). According to the RIAA, the purpose of § 512(h)

being to identify infringers, a notice should be deemed suffi-

cient so long as the ISP can identify the infringer from the IP

address in the subpoena.

Nothing in the Act itself says how we should determine

whether a notification ‘‘includes substantially’’ all the required

information; both the Senate and House Reports, however,

state the term means only that ‘‘technical errors TTT such as

misspelling a name’’ or ‘‘supplying an outdated area code’’ will

not render ineffective an otherwise complete § 512(c)(3)(A)

notification. S. Rep. No. 105–190, at 47 (1998); H.R. Rep.

No. 105–551 (II), at 56 (1998). Clearly, however, the defect in

the RIAA’s notification is not a mere technical error; nor

could it be thought ‘‘insubstantial’’ even under a more forgiv-

ing standard. The RIAA’s notification identifies absolutely

no material Verizon could remove or access to which it could

disable, which indicates to us that § 512(c)(3)(A) concerns

means of infringement other than P2P file sharing.

Finally, the RIAA argues the definition of ‘‘[internet] ser-

vice provider’’ in § 512(k)(1)(B) makes § 512(h) applicable to

an ISP regardless what function it performs with respect to

infringing material – transmitting it per § 512(a), caching it

per § 512(b), hosting it per § 512(c), or locating it per

§ 512(d).

This argument borders upon the silly. The details of this

argument need not burden the Federal Reporter, for the

specific provisions of § 512(h), which we have just rehearsed,

make clear that however broadly ‘‘[internet] service provider’’

is defined in § 512(k)(1)(B), a subpoena may issue to an ISP

only under the prescribed conditions regarding notification.

Define all the world as an ISP if you like, the validity of a

§ 512(h) subpoena still depends upon the copyright holder

having given the ISP, however defined, a notification effective

under § 512(c)(3)(A). And as we have seen, any notice to an

ISP concerning its activity as a mere conduit does not satisfy

the condition of § 512(c)(3)(A)(iii) and is therefore ineffective.

12

In sum, we agree with Verizon that § 512(h) does not by its

terms authorize the subpoenas issued here. A § 512(h) sub-

poena simply cannot meet the notice requirement of

§ 512(c)(3)(A)(iii).

B. Structure

Verizon also argues the subpoena provision, § 512(h), re-

lates uniquely to the safe harbor in § 512(c) for ISPs engaged

in storing copyrighted material and does not apply to the

transmitting function addressed by the safe harbor in

§ 512(a). Verizon’s claim is based upon the ‘‘three separate

cross-references’’ in § 512(h) to the notification described in

§ 512(c)(3)(A). First, as we have seen, § 512(h)(2)(A) re-

quires the copyright owner to file, along with its request for a

subpoena, the notification described in § 512(c)(3)(A). Sec-

ond, and again as we have seen, § 512(h)(4) requires that the

notification satisfy ‘‘the provisions of [§ 512](c)(3)(A)’’ as a

condition precedent to the Clerk’s issuing the requested

subpoena. Third, § 512(h)(5) conditions the ISP’s obligation

to identify the alleged infringer upon ‘‘receipt of a notification

described in [§ 512](c)(3)(A).’’ We agree that the presence in

§ 512(h) of three separate references to § 512(c) and the

absence of any reference to § 512(a) suggests the subpoena

power of § 512(h) applies only to ISPs engaged in storing

copyrighted material and not to those engaged solely in

transmitting it on behalf of others.

As the RIAA points out in response, however, because

§§ 512(b) and (d) also require a copyright owner to provide a

‘‘notification TTT as described in [§ 512](c)(3),’’ the cross-

references to § 512(c)(3)(A) in § 512(h) can not confine the

operation of § 512(h) solely to the functions described in

§ 512(c), but must also include, at a minimum, the functions

described in §§ 512(b) and (d). Therefore, according to the

RIAA, because Verizon is mistaken in stating that ‘‘the take-

down notice described in [§ 512](c)(3)(A) TTT applies exclu-

sively to the particular functions described in [§ 512](c) of the

statute,’’ the subpoena power in § 512(h) is not linked exclu-

sively to § 512(c) but rather applies to all the ISP functions,

wherever they may be described in §§ 512(a)-(d).

13

Although the RIAA’s conclusion is a non-sequitur with

respect to § 512(a), we agree with the RIAA that Verizon

overreaches by claiming the notification described in

§ 512(c)(3)(A) applies only to the functions identified in

§ 512(c). As Verizon correctly notes, however, the ISP activ-

ities described in §§ 512(b) and (d) are storage functions. As

such, they are, like the ISP activities described in § 512(c)

and unlike the transmission functions listed in § 512(a), sus-

ceptible to the notice and take down regime of §§ 512(b)-(d),

of which the subpoena power of § 512(h) is an integral part.

We think it clear, therefore, that the cross-references to

§ 512(c)(3) in §§ 512(b)-(d) demonstrate that § 512(h) applies

to an ISP storing infringing material on its servers in any

capacity – whether as a temporary cache of a web page

created by the ISP per § 512(b), as a web site stored on the

ISP’s server per § 512(c), or as an information locating tool

hosted by the ISP per § 512(d) – and does not apply to an

ISP routing infringing material to or from a personal comput-

er owned and used by a subscriber.

The storage activities described in the safe harbors of

§§ 512(b)-(d) are subject to § 512(c)(3), including the notifica-

tion described in § 512(c)(3)(A). By contrast, as we have

already seen, an ISP performing a function described in

§ 512(a), such as transmitting e-mails, instant messages, or

files sent by an internet user from his computer to that of

another internet user, cannot be sent an effective

§ 512(c)(3)(A) notification. Therefore, the references to

§ 512(c)(3) in §§ 512(b) and (d) lead inexorably to the conclu-

sion that § 512(h) is structurally linked to the storage func-

tions of an ISP and not to its transmission functions, such as

those listed in § 512(a).

C. Legislative History

In support of its claim that § 512(h) can – and should – be

read to reach P2P technology, the RIAA points to congres-

sional testimony and news articles available to the Congress

prior to passage of the DMCA. These sources document the

threat to copyright owners posed by bulletin board services

14

(BBSs) and file transfer protocol (FTP) sites, which the RIAA

says were precursors to P2P programs.

We need not, however, resort to investigating what the

105th Congress may have known because the text of § 512(h)

and the overall structure of § 512 clearly establish, as we

have seen, that § 512(h) does not authorize the issuance of a

subpoena to an ISP acting as a mere conduit for the trans-

mission of information sent by others. Legislative history

can serve to inform the court’s reading of an otherwise

ambiguous text; it cannot lead the court to contradict the

legislation itself. See Ratzlaf v. United States, 510 U.S. 135,

147–48 (1994) (‘‘[W]e do not resort to legislative history to

cloud a statutory text that is clear’’).

In any event, not only is the statute clear (albeit complex),

the legislative history of the DMCA betrays no awareness

whatsoever that internet users might be able directly to

exchange files containing copyrighted works. That is not

surprising; P2P software was ‘‘not even a glimmer in any-

one’s eye when the DMCA was enacted.’’ In re Verizon I,

240 F. Supp. 2d at 38. Furthermore, such testimony as was

available to the Congress prior to passage of the DMCA

concerned ‘‘hackers’’ who established unauthorized FTP or

BBS sites on the servers of ISPs, see Balance of Responsibil-

ities on the Internet and the Online Copyright Liability

Limitation Act: Hearing on H.R. 2180 Before the House

Subcomm. on Courts and Intellectual Property, Comm. on

the Judiciary, 105th Cong. (1997) (statement of Ken Wasch,

President, Software Publishers Ass’n); rogue ISPs that post-

ed FTP sites on their servers, thereby making files of copy-

righted musical works available for download, see Complaint,

Geffen Records, Inc. v. Arizona Bizness Network, No. CIV.

98–0794, at ¶ 1 (D. Ariz. May 5, 1998) available at http:

//www.riaa.com/news/newsletter/pdf/geffencomplaint.pdf, (last

visited December 2, 2003); and BBS subscribers using dial-up

technology to connect to a BBS hosted by an ISP. The

Congress had no reason to foresee the application of § 512(h)

to P2P file sharing, nor did they draft the DMCA broadly

enough to reach the new technology when it came along.

Had the Congress been aware of P2P technology, or antici-

15

pated its development, § 512(h) might have been drafted

more generally. Be that as it may, contrary to the RIAA’s

claim, nothing in the legislative history supports the issuance

of a § 512(h) subpoena to an ISP acting as a conduit for P2P

file sharing.

D. Purpose of the DMCA

Finally, the RIAA argues Verizon’s interpretation of the

statute ‘‘would defeat the core objectives’’ of the Act. More

specifically, according to the RIAA there is no policy justifica-

tion for limiting the reach of § 512(h) to situations in which

the ISP stores infringing material on its system, considering

that many more acts of copyright infringement are committed

in the P2P realm, in which the ISP merely transmits the

material for others, and that the burden upon an ISP re-

quired to identify an infringing subscriber is minimal.

We are not unsympathetic either to the RIAA’s concern

regarding the widespread infringement of its members’ copy-

rights, or to the need for legal tools to protect those rights.

It is not the province of the courts, however, to rewrite the

DMCA in order to make it fit a new and unforseen internet

architecture, no matter how damaging that development has

been to the music industry or threatens being to the motion

picture and software industries. The plight of copyright

holders must be addressed in the first instance by the Con-

gress; only the ‘‘Congress has the constitutional authority

and the institutional ability to accommodate fully the varied

permutations of competing interests that are inevitably impli-

cated by such new technology.’’ See Sony Corp. v. Universal

City Studios, Inc., 464 U.S. 417, 431 (1984).

The stakes are large for the music, motion picture, and

software industries and their role in fostering technological

innovation and our popular culture. It is not surprising,

therefore, that even as this case was being argued, commit-

tees of the Congress were considering how best to deal with

the threat to copyrights posed by P2P file sharing schemes.

See, e.g., Privacy & Piracy: The Paradox of Illegal File

Sharing on Peer-to-Peer Networks and the Impact of Tech-

nology on the Entertainment Industry: Hearing Before the

16

Senate Comm. On Governmental Affairs, 108th Congress

(Sept. 30, 2003); Pornography, Technology, and Process:

Problems and Solutions on Peer-to-Peer Networks: Hearing

Before the Senate Comm. on the Judiciary, 108th Congress

(Sept. 9, 2003).

III. Conclusion

For the foregoing reasons, we remand this case to the

district court to vacate its order enforcing the February 4

subpoena and to grant Verizon’s motion to quash the July 24

subpoena.

So ordered.