ORAL ARGUMENT WAS HEARD ON SEPTEMBER 16, 2003

Nos. 03-7015 and 03-7053

IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN RE: VERIZON INTERNET SERVICES, INC.

Subpoena Enforcement Matter

RECORDING INDUSTRY ASSOCIATION OF AMERICA,

Appellee,

V°

VERIZON INTERNET SERVICES, INC.,

Appellant.

On Appeal from the United States District Court

for the District of Columbia

PETITION OF APPELLEE RECORDING INDUSTRY ASSOCIATION OF AMERICA

FOR REHEARING OR REHEARING EN BANC

* Donald B. Verrilli, Jr.

Of Counsel: Thomas J. Perrelli
Matthew J. Oppenheim Jared O. Freedman
Stanley Pierre-Louis JENNER & BLOCK LLP
RECORDING INDUSTRY 601 13th Street, NW, Suite 1200
ASSOCIATION OF AMERICA Washington, D.C. 20005
1330 Connecticut Avenue, NW, Suite 300 Phone: (202) 639-6000
Washington, D.C. 20036 Fax: (202) 639-6066

Dated: February 2, 2004 * Counsel of Record

 TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

ARGUMENT ................................................................................................................................... 1

I. The Panel's Decision Involves a Question of Exceptional Importance ............................... 1

II. The Panel Misinterpreted § 512(h) ...................................................................................... 9

CONCLUSION .............................................................................................................................. 15
 TABLE OF AUTHORITIES*

CASES

Alabama Power Co. v. EPA, 40 F.3d 450 (D.C. Cir. 1994) .......................................................... 12

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ........................ 9

Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) ............................... 10

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ........................................... 12

McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991) ................................................ 12

NaturalResources Defense Council, Inc. v. EPA, 907 F.2d 1146 (D.C. Cir. 1990) ..................... 10

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) .............................................................................. 5

Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) ....................................... 7

Playboy Enterprises, Inc. v. Russ Hardenbaugh, Inc., 982 F. Supp. 503 (N.D. Ohio 1997) .......... 7

Religious Technology Center v. Netcom On-line Communication Services, Inc., 907 F.

Supp. 1361 (N.D. Cal. 1995) ......................................................................................... 7

Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994) .......................................... 7

Sony Corp. of A merica v. Universal City Studios, Inc., 464 U.S. 417 (1984) ................................. 9

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ...................................................... 9

Tyler v. Cain, 533 U.S. 656 (2001) ................................................................................................ 11

United States v. Granderson, 511 U.S. 39 (1994) ......................................................................... 13

United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) ....................................................................... 11

United States v. Stowe, No. 96C2702, 1996 WL 467238 (N.D. Ill. Aug. 15, 1996) ....................... 7

United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) ..................................................................... 7

Utah v. Evans, 536 U.S. 452 (2002) .............................................................................................. 12

In re Verizon Internet Services Inc., 240 F. Supp. 2d 24 (D.D.C. 2003) ......................... 4, 9, 10, 14

*Authorities upon which we chiefly rely are marked with asterisks.

ii
 STATUTES

"17 U.S.C. § 512 .................................................................................................................... passim

17 U.S.C. § 512(a) ................................................................................................................. 2, 5, 13

17 U.S.C. § 512(b) ................................................................................................................. 2, 3, 13

17 U.S.C. § 512(c) ................................................................................................................. passim

17 U.S.C. § 512(d) ................................................................................................................. 2, 3, 13

"17 U.S.C. § 512(h) ............................................................................................................... passim

17 U.S.C. § 5120) ...................................................................................................................... 5, 12

17 U.S.C. § 5120) ............................................................................................................................ 5

17 U.S.C. § 512(k) ......................................................................................................................... 12

17 U.S.C. § 512(n) ......................................................................................................................... 13

LEGISLATIVE MATERIAL

H. Rep. No. 105-551(II) (1998) ..................................................................................................... 14

S. Rep. No. 105-190 (1998) ............................................................................................. 1, 2, 13, 14

The Copyright Infringement Liability of Online and Internet Service Providers: Hearing
before the Senate Committee on the Judiciary, 105th Cong. (Sept. 4, 1997) ................ 5

Copyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act: Hearing Before
the Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 105th Cong. (Sept. 11, 1997) ................................................................ 6, 7, 8

Nil Copyright Protection Act of 1995 (Part II): Hearing Before the Subcomm. on Courts
and Intellectual Property of the House Comm. on the Judiciary, 104th Cong.
(Feb. 7-8, 1996) .......................................................................................................... 6, 8

Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts and
Intellectual Property of the House Comm. on the Judiciary, 105th Cong.
(Sept. 16-17, 1997) ........................................................................................................ 6

Statement by Marybeth Peters, The Register of Copyrights, Before the Senate Comm. on
the Judiciary, 108th Cong. (Sept. 9, 2003) available at
http://www.copyright.gov/docs/regstat090903.html ..................................................... 1

111
 MISCELLANEOUS

Mark Eckenweiler & Benjamin Wittes, Cyberspace's Lingua Franca, Legal Times, Jan.
23, 1995.......................................................................................................................... 7

Andrew Leonard, Mutiny on the Net, Salon, March 1998, available at

http://archive.salon.com/21 st/feature/1998/03/cov_20feature.html .............................. 7

Pew Internet & American Life Project, The Impact of Recording Suite Against Music
File Swappers (Jan. 2004) at http://www.pewinternet.org/reports/pdfs/
PIP_File_Swapping_Memo_0104.pdf ........................................................................... 1

Webster's Third New International Dictionary (1993) ................................................................. 12

iv
 The Recording Industry Association of America ("RIAA") respectfully submits this

petition for panel rehearing or rehearing en banc pursuant to Federal Rules of Appellate

Procedure 35 and 40. RIAA seeks further review because this case involves a question of

exceptional importance under the Digital Millennium Copyright Act ("DMCA"). In a case of

first impression, the panel sharply restricted the scope of the subpoena authority Congress

conferred in 17 U.S.C. § 512(h), rendering that authority useless as a practical matter and

defeating one of the essential objectives of the DMCA. The panel's misreading of the statutory

text produced a result that is irreconcilable with the Act's overall structure and purposes - and

that flatly contradicts the position of the Copyright Office of the United States. 1 If left

undisturbed, the decision threatens to curtail efforts by the recording industry to combat Internet

piracy that is decimating the industry - efforts that were just beginning to bear fruit. 2

ARGUMENT

I. The Panel's Decision Involves a Question of Exceptional Importance.

Congress enacted the DMCA to combat the emerging reality of"massive piracy" of

copyrighted works on the Internet. S. Rep. No. 105-190, at 8 (1998) ("S. Rep."). Congress was

concerned that this piracy would hobble the Internet for two reasons: (1) Internet service

providers ("ISPs") would refrain from investing because of the threat of substantial liability for

infringement committed by their subscribers, and (2) copyright owners would hesitate to make

works available online because of the ease with which digital works can be pirated. Icl. Title II

of the DMCA, codified at 17 U.S.C. § 512, addresses both concerns. Section 512 confers upon

1 See Statement by Marybeth Peters, The Register of Copyrights, Before the Senate Comm. on
the Judiciary, 108th Cong. (Sept. 9, 2003) (http://www.copyright.gov/docs/regstat090903.html).
2 See Pew Internet &American Life Project, The Impact of Recording Industry Suits Against
Music File Swappers (Jan. 2004) (reporting that the number of Americans downloading music
files dropped by half since the recording industry began filings law suits against individual
infringers) (http://www.pewintemet.org/reports/pdfs/PIP_File_Swapping_Memo_0104.pdf).
ISPs certain limitations on liability, the terms of which vary according to the function the ISP

performs. §§ 512(a)-(d). In exchange, Congress required ISPs to cooperate with copyright

owners to combat piracy and act swiftly when notified of infringement being committed by users

of their network. See S. Rep. at 40.

The core of the congressional bargain struck in § 512 is that copyright owners should

seek redress in the first instance against infringing users, not ISPs, and that ISPs must facilitate

copyright owners' efforts to do so. For copyright owners to enforce their rights, however, they

need to learn the identities of those infringing their copyrights on the Internet, usually

anonymously. To achieve the DMCA's goals, Congress authorized copyright owners to obtain

this information from ISPs. Thus, pursuant to 17 U.S.C. § 512(h)(1), a copyright owner may

obtain from a district court clerk a "subpoena to a service provider for identification of an alleged

infringer" using the ISP's network. Section 512(h) also imposes numerous safeguards, requiring

copyright owners to specify their claims of infringement, limiting the information that may be

obtained by means of the subpoena, and restricting the use of information obtained by the

copyright owner. See 17 U.S.C. § 512(h)(2)(A), (h)(3) & (h)(2)(C).

Section 512(h) subpoenas are critical to copyright owners' efforts to protect their rights in

the Internet age. As the panel acknowledged, "[t]he stakes are large for the music, motion

picture, and software industries." RIAA v. Verizon Internet Servs., Inc., No. 03-7015 at 15 (D.C.

Cir. Dec. 19, 2003) ("Slip op."). More than two billion infringing music files are downloaded

each month on peer-to-peer ("P2P") systems such as KaZaA. See RIAA Br. at 2. This massive

piracy has cost the music industry billions in lost revenues. Id. The infringement takes place in

broad daylight - every day millions of infringers upload and download copyrighted files on P2P

networks, shielded by the anonymity of an alias and an Internet Protocol ("IP") address.

2
Copyright owners can observe this infringement and can ascertain the IP addresses of infringers.

Only ISPs, however, can identify the actual persons committing infringement. Absent disclosure

by the ISP, copyright owners are powerless to take action.

This appeal arises out of RIAA's effort to use § 512(h) subpoenas to obtain the identities

of two individuals using Verizon's network to disseminate hundreds of copyrighted works

without authorization. Id. at 6-7 (citing J.A. 81,233-34). Reversing the district court, the panel

held that Congress authorized § 512(h) subpoenas only when infringers store infringing material

on an ISP's network, and not when (as is often the case in P2P networks) such material is stored

on the subscribers' home computers and disseminated over the ISP's network, i.e., when the ISP

is acting as a mere "conduit." Slip. op. at 7. The panel identified no direct instruction from

Congress restricting the subpoena authority in that manner. Rather, the panel limited § 512(h) on

the basis of an inference drawn from a cross-reference in § 512(h) to another subsection of § 512.

As will be shown infra, the panel's interpretation rests on fundamental errors of statutory

construction. The panel's decision is worthy of further review, however, not merely because it

was wrong but because the panel's errors will eviscerate § 512(h), and with it the underlying

purposes of § 512. The panel authorized § 512(h) subpoenas where the DMCA gives copyright

owners another remedy (seeking removal of the infringing material or links to the infringing

material stored on the ISP's network, see § 512(b), (c), (d)), but eliminated their availability

where they are needed most, i.e., where the copyright owner's only option for stopping the

infringement is a direct suit against the infringer. 3 Even worse, the limited subpoena power the

panel preserved is of little value. Typically, an ISP storing infringing material on a website or

3 If the ISP does not store, cache, or link to the infringing material, the copyright owner cannot
benefit from the "notice and take down" provisions contained in §§ 512(b), (c) and (d) to stop
ongoing infringement.

3
bulletin board does not know the identity of individuals who post infringing material; those ISPs

simply post information sent by others. Only ISPs that provide the initial Internet access know

who the infringer (the sender) is. Under the panel's interpretation, however, copyright owners

can subpoena only ISPs that cannot identify the infringers, not the ISPs that can.

Because the vast majority of digital piracy involves P2P networks, the panel's misreading

of § 512(h) will subvert the balanced objectives of the DMCA. Copyright owners will be

prevented from asserting their rights directly against infringing users. At the same time, ISPs

will benefit in two ways: they will profit handsomely from illegal downloading over high-end

broadband services, see RIAA Br. at 3 (noting that over half the capacity of broadband networks

are consumed by P2P users), and will receive the DMCA's limitations on liability without the

concomitant obligation to do the most important thing they can do to stop infringement over their

networks - identify the infringers. Congress could not possibly have intended this result.

The district court found "no sound reason why Congress would enable a copyright owner

to obtain identifying information from a service provider storing infringing material on its

system, but would not enable a copyright owner to obtain identifying information from a service

provider transmitting the material over its system." In re Verizon Internet Servs., Inc., 240 F.

Supp. 2d 24, 35 (D.D.C. 2003). For its part, the panel never supplied any substantive

explanation for this irrational result. Regardless of whether an ISP transmits or stores infringing

material, the damage to the copyright owner from the infringement is the same (irreparable), the

subscriber's conduct is the same (unlawful), and the burden on the ISP to identify the infringer is

the same (minimal). While there may be a rationale for Congress's decision to give conduit ISPs

a broader limitation on liability than ISPs storing infringing material, there is no such rationale

for treating ISPs differently when it comes to identifying infringers. Id. at 35.

4
 The panel's only defense of its constricted reading is its claim that "the legislative history

of the DMCA betrays no awareness whatsoever that internet users might be able directly to

exchange files containing copyrighted works." Slip op. at 14. Even if that assertion were correct

(and it is not), it fails as a justification. At the insistence oflSPs, Congress drafted the DMCA

broadly to ensure that it would not be immediately outmoded by changes in technology. See The

Copyright Infringement Liability of Online and Internet Service Providers: Hearing before the

Senate Comm. on the Judiciary, 105th Cong. 23, 25-26 (Sept. 4, 1997) (ISP testimony

advocating for a statute drafted by "function" which would be more adaptable to technological

change). The whole point of the DMCA was to provide broad, enduring rules for the future, and

thus to avoid the necessity of ongoing legislative revision. See generally, PGA Tour, Inc. v.

Martin, 532 U.S. 661,689 (2001).

In any case, the text and legislative history of § 512 refute the panel's assumption.

Section § 512(a) - the provision for which ISPs fought the hardest - was designed to cover

certain situations in which the ISP serves only as a "conduit" for Internet users "directly...

exchang[ing] files containing copyrighted works." Slip op. at 14. ISPs would not have feared

derivative liability in these circumstances unless their subscribers were using the "conduit" to

commit infringement. Moreover, in § 512(i), Congress conditioned the limitations of liability-

including the § 512(a) limitation for conduit functions that do not involve storage - on ISPs

enforcing a policy of terminating the accounts of repeat infringers. Similarly, § 512(j)

specifically provides for injunctive relief against ISPs to block infringement by subscribers even

where the infringing material resides on the subscriber's computer. These provisions presuppose

users "directly... exchang[ing]" copyrighted works over an ISP's conduit facilities.

 The legislative history similarly demonstrates that Congress contemplated, and legislated

against, infringing activity where materials are stored on subscribers' computers and merely

transmitted by ISPs. The legislative record is replete with concerns that individuals would

engage in wide-ranging copyright infringement using the conduit facilities of ISPsfrom their

home computers. The most obvious of those is e-mail, a technology in wide use when the

DMCA was enacted in 1998. Congress heard testimony about the "growing use of 'blanket' e-

mail messages" to commit copyright infringement and about a specific infringer using e-mail

(and attachments thereto) to disseminate 150 copyrighted software programs. 4 One songwriter

explained to Congress the problems copyright owners faced from e-mail distribution systems

because ISPs had no obligation to reveal the identities of e-mail customers committing copyright

infringement, absent a court order. 5

In this regard, the panel erred in contending that Congress was concerned only with File

Transfer Protocol ("FTP") sites and Bulletin Board Services ("BBS") stored on the systems of

ISPs, and with rogue ISPs. Slip op. at 14. Congress knew in 1998 that FTP sites and BBS

services (precursors to P2P services) on home computers were engines of copyright piracy. 6 The

4 Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts and
Intellectual Property of the House Comm. on the Judiciary, 105th Cong. 172, 175 (Sept. 16-17
1997) (statement of Ronald Dunn, President of the Information Industry Association); NII
Copyright Protection Act of 1995 (Part 2)- Hearing Before the Subcomm. on Courts and
Intellectual Property of the House Comm. on the Judiciary, 104th Cong. 84, 88 (Feb. 7-8, 1996)
(statement of Garry L. McDaniels on behalf of the Software Publishers Association). See also
Copyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act."Hearing Before the House
Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 105th
Cong. 17-18 (Sept. 11, 1997) (statement of Kevin DiGregory, Deputy Attorney General,
Department of Justice) (describing use of e-mail to commit infringement of software programs).
5 See Online Copyright Liability Limitation Act: Hearing Before the Subcomm. on Courts and
Intellectual Property of the House Comm. on the Judiciary, 105th Cong. 156, 160 (Sept. 16-17,
1997) (statement of Allee Willis, songwriter).
6 The panel appears to have believed incorrectly that FTP sites and BBS sites resided only on
servers maintained by ISPs. Slip op. at 14. Rather, many FTP and BBS sites were located on
cases cited most prominently in hearings and in the House and Senate reports involved BBS

services operated from home computers. See, e.g., Religious Tech. Ctr. v. Netcom On-line

Communication Servs., Inc., 907 F. Supp. 1361, 1365-66 (N.D. Cal. 1995) (describing BBS

operated at home and linked to the Internet by an ISP) (cited at S. Rep. at 19 n.20); Playboy

Enters., Inc. v. Frena, 839 F. Supp. 1552, 1555-56 (M.D. Fla. 1993) (BBS operated from

individual's own computer) (cited at S. Rep. at 19 n.20); Sega Enters. Ltd. v. MAPHIA, 857 F.

Supp. 679, 682 (N.D. Cal. 1994) (computer servers for infringing BBS located in defendant's

residence); Playboy Enters., Inc. v. Russ Hardenbaugh, Inc., 982 F. Supp. 503,507 (N.D. Ohio

1997) (describing FBI seizure of BBS equipment from defendant's premises), z The Department

of Justice testified concerning infringement committed from FTP and BBS sites run on home

computers. See Copyright Piracy, and H.R. 2265, The No Electronic Theft (NET) Act: Hearing

Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary,

105th Cong. 17-18 (Sept. 11, 1997) (statement of Kevin DiGregory, Deputy Attorney General,

Department of Justice). Indeed, the Department was already prosecuting criminal copyright

infringers operating BBS services from their homes. See, e.g., United States v. Stowe, No.

96C2702, 1996 WL 467238 at *1 (N.D. Ill. Aug. 15, 1996).

In all of these situations - well-known to Congress when it enacted the DMCA - only the

conduit ISP that provides access to the Internet can identify the infringer. At least one major ISP

recognized this problem and proposed that, in exchange for limitations on liability, ISPs should

home computers. See Andrew Leonard, Mutiny on the Net, Salon, March 1998, available at
http://archive.salon.com/21 st/feature/1998/03/cov_20feature.html (FTP software "allows anyone
with a computer and a modem to make [pirated music] files on their home computer accessible
to the rest of the Net"); Mark Eckenweiler & Benjamin Wittes, Cyberspace's Lingua Franca,
Legal Times, Jan. 23, 1995 ("[m]any BBS's are operated by hobbyists off of home computers").
7 By 1998, BBS services operated out of people's homes were a also a haven for obscenity and
child pornography. See, e.g., United States v. Thomas, 74 F.3d 701,705 (6th Cir. 1996)
(describing obscene bulletin board operated from home since 1991).
be required, "[i]n those cases where the allegedly infringing content is not on facilities controlled

by the lISP] .... [to] take[] reasonable steps to assist the copyright owner in identifying the party

that does control the hosting facility (upon receipt of a subpoena if necessary)." Nil Copyright

Protection Act of 1995: Hearing Before the Subcomm. on Courts and Intellectual Property of the

House. Comm. on the Judiciary, 104th Cong. 261 (Feb. 7-8, 1996) (testimony of Stephen M.

Heaton, General Counsel of Compuserve, Inc.).

The overriding theme of the legislative record is that with the expanding power of

personal computers and rapidly increasing bandwidth, anyone would be able to perpetrate

massive copyright infringement. See Copyright Piracy, and H.R. 2265, The No Electronic Theft

(NET) Act: Hearing before the Subcommittee on Courts and Intellectual Property of the House

Committee on the Judiciary, 105th Cong. (Sept. 11, 1997) (Statement of Marybeth Peters,

Register of Copyrights) (noting how "a disgruntled former employee, a dissatisfied customer,

[or] an Internet user opposed to the fundamental concept of copyright law" can "inflict

tremendous damage to the market for a copyrighted work"). The panel was thus fundamentally

in error in concluding that users "directly... exchang[ing]" copyright works (such as through

P2P infringement) was an unforeseen risk when Congress enacted the DMCA. Rather, Congress

fully understood the crippling piracy that already beset the music industry (among others) and

that would only get worse. In the DMCA, Congress acted to give copyright owners the tools to

stop such piracy, wherever the infringing material was stored. The panel's opinion strips

copyright owners of one of the most essential of these tools.

Finally, in assessing the need for further review, it is important to recall that the ill effects

of the panel's decision are not confined to copyright owners. Enforcing copyright laws serves

the public interest, because "the ultimate aim" of the copyright laws is "to stimulate artistic
creativity for the general public good." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,

156 (1975); see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)

Indeed, "it is virtually axiomatic that the public interest can only be served by upholding

copyright protections and, correspondingly, preventing the misappropriation of the skills,

creative energies, and resources which are invested in the protected work." Apple Computer,

Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) (internal quotation and

citation omitted). The panel's decision threatens to allow literally billions of copyright violations

to continue. That is plainly a massive harm to the public interest.

II. The Panel Misinterpreted § 512(h).

Despite expressing regret for the harmful consequences of restricting § 512(h), the panel

believed that the plain meaning of the statutory text compelled that result. The panel's reading,

however, rests on fundamental errors of statutory construction. Once those errors are brought

into focus, and the provisions on which the panel relied are read in light of the overall structure

and purposes of the DMCA, it should be clear that the panel misread § 512(h).

Section 512(h) does not impose any direct limitations on a copyright owner's ability to

obtain DMCA subpoenas. As the district court observed, had Congress wanted to limit § 512(h)

to exclude conduit providers, it could easily have done so directly. Congress "could have stated

such a limitation in subsection (h), or stated that subsection (h) does not apply to subsections (a),

(b), or (d), or even have placed the subpoena authority itself within subsection (c). But Congress

did not do so." 240 F. Supp. 2d at 33. According to the panel, Congress chose the peculiar

mechanism of an implied limitation based on the cross-reference to subsection (c)(3)(A).

Section § 512(h)(2)(A) requires a copyright owner seeking a DMCA subpoena to provide

the ISP with "a notification described in subsection (c)(3)(A)." Although a copyright owner
seeking the identity of a subscriber using a P2P system can indisputably satisfy the other

prerequisites listed in § 512(c)(3)(A), the panel concluded that one such prerequisite could never

be satisfied - namely, "[i]dentification of the material that is claimed to be infringing.., and that

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

locate the material." § 512(c)(3)(A)(iii). The panel believed that an "ISP can neither 'remove'

nor 'disable access to' the infringing material" when it resides on a subscriber's computer rather

than the ISP's network. Slip op. at 9-10. For this reason, and this reason alone, the panel

concluded that the cross-reference to § 512(c)(3)(A) necessarily meant that § 512(h) subpoenas

could not issue unless infringing material is stored on the ISP's network.

The panel, however, erred in concluding that an ISP cannot "disable access" to material

residing on a subscriber's computer, and that error was the product of the panel's misuse of a

canon of statutory construction. The panel rejected the district court's common-sense conclusion

that an ISP "certainly can disable access to the material by terminating the account altogether."

240 F. Supp. 2d at 33 n.5. The panel noted that the DMCA uses the words "disable access" and

"terminat[e]" distinctly elsewhere in § 512 (specifically in § 512(j), which governs the scope of

permissible injunctions), and invoked the canon that different terms used in a statute are

presumed to have different meanings. Slip op. at 10.

In so doing, the panel ignored the possibility that the terms have distinct, yet overlapping

meanings. Yet that is a common occurrence. Courts have routinely recognized that even distinct

statutory terms can have an overlapping or common meaning. See, e.g., Natural Res. Def.

Council Inc. v. EPA, 907 F.2d 1146, 1163 (D.C. Cir. 1990) (rejecting argument that terms

cannot have overlapping meaning where "the language of the definitions does not explicitly

indicate that they are to be mutually exclusive"); Carson Harbor Village, Ltd. v. Unocal Corp.,

10
270 F.3d 863,882 (9th Cir. 2001) (concluding that "there is at least substantial overlap between"

two terms used in the same statute and "reject[ing] the interpretation that the difference in the

definitions requires us to... make the terms mutually exclusive"); United States v. Hill, 79 F.3d

1477, 1482-83 (6th Cir. 1996) (noting that two terms in the same provision "must have different

meanings," but concluding nonetheless "that there is considerable overlap between the two

terms"). As the Supreme Court has said, "Congress... is permitted to use synonyms in a

statute." Tyler v. Cain, 533 U.S. 656, 664 (2001)

Thus, the canon that different terms in a statute are presumed to have different meanings

does not eliminate the need to give each term its ordinary meaning, even if those ordinary

meanings overlap to some extent. In the DMCA, Congress used terms that have such an overlap

and did so purposefully. The objective of disabling access to infringing material is to prevent the

outside world from accessing that material. Terminating a subscriber's account achieves that

objective. The DMCA authorizes the termination of a subscriber's account not simply (as the

panel appeared to believe, slip op. at 10) as a punishment to prevent the infringer from accessing

the Intemet to surf the World Wide Web. Rather, it is a remedy for the copyright owner to

prevent others from gaining access to infringing material (either by accessing the subscriber's

computer or receiving a transmission from the subscriber). Whether infringing material is stored

on a website hosted by an ISP or on a home computer, in each case it is connected to the Internet

(and to the world-at-large) by the ISP's facilities. In either situation, tuming offthe connection

to the Intemet prevents others from accessing it and thus "disables access" to the infringing

material. Indeed, were Verizon ever sued for copyright infringement arising out of the conduct

of a subscriber whose account it had terminated, it would certainly claim that terminating the

subscriber's account satisfied any obligation to disable access to the infringing material.

11
Similarly, the panel was wrong in drawing from § 5120) the proposition that disabling access

and terminating must have mutually exclusive meanings. If an ISP under an injunction to disable

access to infringing material were to terminate the account of the subscriber, there is no doubt

the ISP would be in compliance with the injunction -thus proving that, as used in § 512(j), the

terms "disable access" and "terminat[e]" do not have mutually exclusive meanings.

The district court read the statute correctly. The court gave the phrases "disable access"

and "terminat[e]" their ordinary meanings. To "disable" means to "make incapable or

ineffective." Webster's Third New International Dictionary 642 (1993). To "terminate" means

"to bring to an ending or cessation in time, sequence or continuity." See id. at 2359.

Terminating a subscriber's account brings an end to the subscriber's connection to the Intemet

and thus makes access to the subscriber's infringing material ineffective, i.e, disabled.

In contrast, the panel appears to have created its own specialized technical meaning for

each term. Congress, however, did not define "disable access" or "terminate a subscriber's

account," and the terms do not have established meanings in the legal or computer fields.

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989); McDermott Int 'l,

Inc. v. Wilander, 498 U.S. 337, 342 (1991). Nor did Congress place the terms in quotation

marks, refer to other authorities to define the terms, or indicate that the terms should be given

anything other than their ordinary meanings. See Utah v. Evans, 536 U.S. 452, 467 (2002);

Alabama Power Co. v. EPA, 40 F.3d 450, 454 (D.C. Cir. 1994). Indeed, had Congress wanted to

give the terms specialized meanings, it demonstrated elsewhere in § 512 that it knew how to do

so. See § 512(i)(2) (defining "standard technical measures"), a

8 One other term the Congress expressly defined - twice - is "service provider." § 512(k)(1)(A)
& (B). It is crystal clear that Congress intended the term "service provider" as used in
subsection (h) to encompass ISPs providing "conduit" functions. See § 512(k)(1)(B). As the

12
 In elevating its preferred canon above all others, the panel paid no heed to the "basic

principle of statutory construction.., that where words in a statute are not defined, they must be

given their ordinary meaning." United States v. Granderson, 511 U.S. 39, 71 (1994) (internal

quotation and citation omitted). Thus, wholly apart from any consideration of the DMCA's

structure and purposes, the panel's reading of the text of § 512 fails on its own terms.

The panel's opinion ignores the text, structure, and purposes of§ 512(h). More

fundamentally, in narrowly focusing on the cross-reference, the panel's interpretation is

unmoored from the text and structure of § 512(h), as well as the structure of § 512 as a whole.

The sharp contrast between the broadly worded § 512(h) and the narrowly crafted

limitations on liability in subsections (a)-(d) demonstrates that Congress did not intend § 512(h)

to be restricted to ISPs that perform specific functions. For each of subsections (a)-(d), Congress

specified the functions ISPs must be performing to qualify for a limitation on liability. Each

subsection contains prefatory language that clearly and expressly defines a specific ISP function.

See, e.g. § 512(a)(1)-(5); § 512(b)(1)(A)-(C). Indeed, Congress established an express rule of

construction making clear the function an ISP performs is critical to determining the application

of §§ 512(a)-(d). See § 512(n); S. Rep. at 55 ("Section 512's limitations on liability are based on

functions"). That rule of construction applies only to those subsections. S. Rep. at 55

("Subsection [(n)] establishes a rule of construction applicable to subsections (a) through (d)").

Section 512(h) is starkly different. Congress drew no functional distinctions in § 512(h)

and included no prefatory language limiting its application to ISPs performing particular

functions. Section 512(h) by its terms applies broadly to all ISPs performing all functions. In

district court found, it is deserving of some weight that Congress went out of its way to define
the term broadly when it is used subsection (h). Although the panel characterized this argument
as "silly," slip op. at 11, it is hard to understand why Congress would have taken such a step if it
intended that subsection (h) could never apply to conduit providers, as the panel concluded.

13
this regard, § 512(h) is similar to § 512(i), which also applies to all ISPs, including conduit ISPs.

Moreover, § 512(n)'s rule of construction does not apply to § 512(h). Congress could hardly

have been more clear that § 512(h) was not limited to ISPs performing a certain set of functions.

Nor did Congress anywhere suggest that it intended, as the panel concluded, that

subsection (c)(3)(A) drastically restricts the scope of the subpoena provision. Congress made

clear that it intended subsection (c)(3)(A) to provide "procedures," not substantive limitations.

See H. Rep. No. 105-55 (II) at 55 (1998). Subsection (c)(3)(A) is referenced in numerous

subsections within § 512 as a mechanism for providing ISPs with sufficient information to

comply with their obligations. In none of those other subsections, however, does it create an

implicit limitation on the scope of the subsection. Cf slip op. at 12-13 (discussing adoption of

subsection (c)(3)(A) in subsections (b) and (d)). Nor should it here. The obvious purpose of

§ 512(h)'s cross-reference to § 512(c)(3)(A) is to provide a means by which the copyright owner

establishes its bona tides and communicates the needed information to the ISP. Congress made

use of the cross-reference for that reason, and not to limit the substantive scope of § 512(h). 9

Moreover, the limitation that the panel imposed does not appear in subsection (c)(3)(A).

The panel held that § 512(h) applies solely when ISPs are storing infringing material. Nothing in

subsection (c)(3)(A), however, mentions where infringing material is stored. That requirement is

in an entirely different portion of subsection (c) that is not referenced in subsection (h). The

effect of the panel's decision is to take a substantive limitation in subsection (c)(1), import that

9 One oddity of the panel's holding that a copyright owner cannot obtain a § 512(h) subpoena
because the ISP cannot "disable access" to infringing material is that § 512(h) does not require
an ISP to disable access to any material at all. It merely requires the ISP to identify the infringer,
something the ISP clearly can do. Indeed, the district court recognized the different purpose
fulfilled by subsection (h) and served by subsection (c)(3)(A) by holding that "[t]he requirement
for the notification is simply that it identify the infringing material to be removed, not that
removal be effectuated." 240 F. Supp. 2d at 33 n.5.

14
limitation by reference into the wholly procedural subsection (c)(3)(A) through the phrase

"disable access," and then import it again by reference into subsection (h) - all without any

suggestion by Congress (in the text or legislative history) that it intended such a result.

Finally, the panel also ignored a provision that speaks directly to the issue in this case.

The panel concluded that, because DMCA notifications to conduit ISPs would be ineffective in

requiring the ISP to disable access to infringing material, such notifications cannot form the basis

for a DMCA subpoena. Section 512(h), however, contemplated exactly this situation and makes

clear that an ISP's obligation to identify infringers is distinct from the obligation imposed on

ISPs to disable access to infringing material upon receipt of a DMCA notification. Thus, an ISP

must respond to a DMCA subpoena "notwithstanding any other provision of law and regardless

of whether the service provider responds to the notification." § 512(h)(5) (emphasis added).

Congress thus envisioned that there would be situations, as here, in which an ISP need not

respond to a notice of infringement, but nonetheless must respond to the subpoena.

For all of these reasons, an examination of the text, structure, and purpose of the DMCA

compels the conclusion that § 512(h) is not limited as the panel believed, but applies to all ISPs

regardless of whether they are storing infringing material.

CONCLUSION

For the foregoing reasons, RIAA respectfully requests that the Court grant rehearing or

rehearing en banc.

15
 Respectfully submitted,

Of Counsel: ,_. _,]'N'/,,._,,

Matthew J. Oppenheim
Stanley Pierre-Louis
RECORDING INDUSTRY
ASSOCIATION OF AMERICA
1330 Connecticut Avenue, NW
Suite 300
Washington, D.C., 20036
Donald BI Verrilli, Jr.,--D('._'_"--Bar
No. 420434
Thomas J. Perrelli, D.C. Bar No. 438929
Jared O. Freedman, D.C. Bar No. 469679
JENNER & BLOCK LLP
601 13th Street, NW, Suite 1200
Washington, D.C. 20005
Phone: (202) 639-6000
Fax: (202) 639-6066

Date: February 2, 2004

 CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of February, 2004, I caused copies of the foregoing

Recording Industry Association of America's Petition for Rehearing or Rehearing En Banc, to be

served via first-class U.S. Mail, postage prepaid, to the following:

Andrew G. McBride John Thorne

Bruce G. Joseph Sarah B. Deutsch
Dineen P. Wasylik VERIZON INTERNET SERVICES, INC.
Kathryn L. Comerford 1515 N. Courthouse Road
WILEY REIN & FIELDING LLP 5 th Floor

1776 K Street, NW Arlington, VA 22201

Washington, DC 20006
Lawrence S. Robbins
Peter Keisler Kathryn S. Zecca
Roscoe C. Howard, Jr. ROBBINS, RUSSELL, ENGLERT,
Douglas N. Letter ORSECK & UNTEREINER LLP
Scott R. McIntosh 1801 K Street, NW
DEPARTMENT OF JUSTICE Suite 411
20 Massachusetts Avenue, NW, 7th Floor Washington, DC 20006
Washington, DC 20530
Megan E. Gray
David E. Kendall GRAY MATTERS
Paul B. Gaffney 1928 Calvert Street, NW
Manish K. Mital Suite 6
WILLIAMS & CONNOLLY LLP Washington, DC 20009
725 Twelfth Street, NW
Washington, DC 20005 Joe Robert Caldwell, Jr.
BAKER BOTTS LLP
Cindy A. Cohn The Warner Building
ELECTRONIC FRONTIER 1299 Pennsylvania Avenue, NW
FOUNDATION Washington, DC 20004
454 Shotwell Street
San Francisco, CA 94110 Stewart Baker
STEPTOE & JOHNSON, LLP
Paul Alan Levy 1330 Connecticut Avenue, NW
PUBLIC CITIZEN LITIGATION GROUP Washington, DC 20036
1600 20th Street, NW
Washington, DC 20009

Thomas J. i_/_elli - -_ _"

CIRCUIT RULE 35(c) ADDENDUM
 INDEX

RIAA v. Verizon Internet Services Inc., No. 03-7015 (D.C. Cir. Dec. 19, 2003) .................... Add. 1

Certificate of Parties and Amici ............................................................................................ Add. 17

Corporate Disclosure Statement ........................................................................................... Add. 22

 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.

Uniteb State Court of ppeal[S

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2003 Decided December 19, 2003

No. 03-7015

RECORDING INDUSTRY ASSOCIATION OF AMERICA, _NC.,

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 ofcosts must be filedwithin14days after entry ofjudgment.
The court lookswith disfavoruponmotionsto file bills of costs out
of time.

Add. 1
 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.
DiMonc_ 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 .rap3 files of copyrighted
music via "peer-to-peer" (P2P) file sharing programs, such as

Add. 2
 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).

Add. 3
 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 HAaV. 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

Add. 4
 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 5 512(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. 5§ 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. 5 512(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. §5 512(h)(3), (5).
On July 24, 2002 the RIAA served Verizon with a subpoena
issued pursuant to 5 512(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."

Add. 5
 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-
ha, 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

Add. 6
 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

Add. 7
 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.
§5 512(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. 5§ 512(d)(1)-(3).
Notably present in §5 512(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 [5 512](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.
5§ 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 ... 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.

Add. 8
 9

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 ... 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).

Add. 9
 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 ...
who is engaging in infringing activity ... 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

Add. 10
 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 ... 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.

Add. 11
 12

In sum, we agree with Verizon that 8 512(h) does not by its

terms authorize the subpoenas issued here. A 8 512(h) sub-
poena simply cannot meet the notice requirement of
8 512(c)(3)(A)(iii).
B. Structure
Verizon also argues the subpoena provision, 8 512(h), re-
lates uniquely to the safe harbor in 8 512(c) for ISPs engaged
in storing copyrighted material and does not apply to the
transmitting function addressed by the safe harbor in
8 512(a). Verizon's claim is based upon the "three separate
cross-references" in 8 512(h) to the notification described in
8 512(c)(3)(A). First, as we have seen, 8 512(h)(2)(A) re-
quires the copyright owner to file, along with its request for a
subpoena, the notification described in 8 512(c)(3)(A). Sec-
ond, and again as we have seen, 8 512(h)(4) requires that the
notification satisfy "the provisions of [8 512](c)(3)(A)" as a
condition precedent to the Clerk's issuing the requested
subpoena. Third, 8 512(h)(5) conditions the ISP's obligation
to identify the alleged infringer upon "receipt of a notification
described in [8 512](c)(3)(A)." We agree that the presence in
8 512(h) of three separate references to 8 512(c) and the
absence of any reference to 8 512(a) suggests the subpoena
power of 8 512(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
88 512(b) and (d) also require a copyright owner to provide a
"notification ... as described in [8 512](c)(3)," the cross-
references to 8 512(c)(3)(A) in 8 512(h) can not confine the
operation of 8 512(h) solely to the functions described in
8 512(c), but must also include, at a minimum, the functions
described in 88 512(b) and (d). Therefore, according to the
RIAA, because Verizon is mistaken in stating that "the take-
down notice described in [8 512](c)(3)(A) ... applies exclu-
sively to the particular functions described in [8 512](c) of the
statute," the subpoena power in 8 512(h) is not linked exclu-
sively to 8 512(c) but rather applies to all the ISP functions,
wherever they may be described in 88 512(a)-(d).

Add. 12
 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

Add. 13
 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-

Add. 14
 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

Add. 15
 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.

Add. 16
 CERTIFICATE OF PARTIES AND AMICI

Pursuant to D.C. Circuit Rules 28(a)(1)(A) and 35(c), the Recording Industry Association

of America, by its attorneys, hereby certifies that the following parties, intervenors and amici

appeared before the District Court and this Court:

District Court. The parties and amici before the District Court were as follows:

Plaintiff

Recording Industry Association of America

Defendant

Verizon Internet Services, Inc.

Intervenor (D.D.C. No. 1:03MS00040)

United States

Amici Curiae (D.D.C. No. 1:02MS 0323)

Alliance for Public Technology

Computer Professionals for Social Responsibility

Consumer Alert

Electronic Frontier Foundation

Media Access Project

National Grange

National Consumers League

Privacy Rights Clearinghouse

Privacy Activism

Public Knowledge

Add. 17
 Utility Consumers' Action Network

Electronic Privacy Information Center (EPIC)

Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law

United States Internet Industry Association

The Computer & Communications Industry Association

Internet Service Providers Association (South Africa)

Yahoo!, Inc.

Southern Star

Mercury Networks, LLC

Netlink 2000, LLC

Zzapp! Internet Services

SMCNET LLC

Ice Communications, Inc.

Frontier and Citizens Communications

DM Solutions

Motion Picture Association of America (MPAA)

Amici Curiae (D.D.C. No. 1:03MS00040)

The Computer & Communications Industry Association

Texas Internet Service Providers Association

Washington Association of Internet Service Providers

Inkeeper Co.

Progressive Internet

Southern Star

Add. 18
 Mercury Network Corp.

Zzapp! Internet Services

Capricia Internet Services

LRBCG.com, Inc.

STIC.net, LP

Wiredsafety.og

Parry Aftab

Motion Picture Association of America (MPAA)

Court of Appeals. The parties and amici before this Court were as follows:

Plaintiff-Appellee

Recording Industry Association of America

Defendant-Appellant

Verizon Internet Services, Inc.

Intervenor

United States of America

Amici Curiae (D.C. Cir. No. 03-7015)

Public Citizen

American Legislative Exchange Council

Capricia Intemet Services

Computer Communications Industry Association

European Internet Service Provider Association

InKeeper Co.

Mercury Network Corp.

Add. 19
New York State Telecommunications Association, Inc.

Progressive Intemet Action

SBC Internet Services

Southern Star

Stic.net. LP

Texas Internet Service Providers Association

United States Internet Industry Association

United States Internet Service Provider Association

United States Telecom Association

Washington Association of Internet Service Providers

Zzapp! Intemet Services

Alliance for Public Technology

American Civil Liberties Union

ACLU of the National Capital Area

American Association of Law Libraries

American Library Association

Association of Research Libraries

Citizens for a Sound Economy Foundation

Competitive Enterprise Institute

Computer Professionals for Social Responsibility

Consumer Action

Consumer Federation of America

Consumers Union

Add. 20
DigitalConsumer.org

Digital Future Coalition

EDUCAUSE

Electronic Frontier Foundation

Electronic Privacy Information Center

Media Access Project

National Association of Consumer Agency Administrators

National Coalition Against Domestic Violence

National Consumers League

National Grange of the Order of Patrons of Husbandry

Pacific Research Institute

Privacy Rights Clearinghouse

Privacyactivism

Public Knowledge

Utility Consumers' Action Network

WiredSafety.org

Add. 21
 CORPORATE DISCLOSURE STATEMENT

Pursuant to D.C. Circuit Rules 26.1 and 35(c), the Recording Industry Association of

America, by its attorneys, respectfully states that it is not a corporate entity, and is neither owned

by a parent corporation nor by any publicly held corporation that owns 10% or more of its stock.

Add. 22