In re Subpoena to University of Nc at Chapel Hill

367 F.Supp.2d 945

In re SUBPOENA TO UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

Recording Industry Association of America v. University Of North Carolina At Chapel Hill.

In re Subpoena to North Carolina State University

Recording Industry Association of America v. North Carolina State University.

No. 1:03MC138.

No. 1:03MC139.

United States District Court, M.D. North Carolina.

April 14, 2005.

John P. Scherer, II, N.C. Dept. of Justice, Office of The Attorney General, Raleigh, NC, for University of North Carolina at Chapel Hill.

David William Sar, Brooks Pierce McLendon Humphrey & Leonard, Greensboro, NC, Mark J. Prak, Brooks Pierce McLendon Humphrey & Leonard, L.L.P., Raleigh, NC, for Recording Industry Association of America, Inc.

ORDER

ELIASON, United States Magistrate Judge.

Background

These cases, which are consolidated only for the purposes of this Order, involve attempts by the Recording Industry Association of America (the RIAA) to identify two internet users which it believes infringed the copyrights of its members. The RIAA states that it has information indicating that unknown persons using the screen names "hulk" and "CadillacMan@Blubster.com" offered to download to other users a number of computer files containing songs. The RIAA claims that its members own the copyrights for these songs and that the downloads constitute an infringement of those copyrights.

When copyright owners or their representatives learn of a person engaging in infringing activity, they can simply contact the person directly to stop the infringement or else bring a lawsuit to achieve that same result. However, because the alleged infringers in the present cases identify themselves on the internet only by their screen names, the RIAA has been unable to use ordinary means to identify and contact them. Still, the RIAA was able to ascertain that "hulk" receives access to the internet through the University of North Carolina at Chapel Hill (UNC) and that "CadillacMan" receives internet service through North Carolina State University (N.C. State). As their internet service providers (ISPs), UNC and N.C. State should be aware of "hulk" and "CadillacMan's" true identities. For this reason, the RIAA obtained subpoenas from the Clerk of this Court directed to the schools pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. The subpoenas and their attachments identify copyright violations that the RIAA claims "hulk" and "CadillacMan" committed and seek to compel the schools to provide it with the alleged infringers' actual names, addresses, telephone numbers, and e-mail addresses.

Initially, the schools did not object to the subpoenas and appeared willing to comply. However, they first notified the users that the subpoenas had been issued. After receiving notification, and before the schools complied with the subpoenas, "hulk" filed both a motion to intervene as "John Doe" ("hulk" will hereafter be referred to as "John Doe") and a motion to quash the subpoena. "CadillacMan" also filed a motion to quash, a motion for a protective order, and later a motion to intervene as "Jane Doe" ("CadillacMan" will hereafter be referred to as "Jane Doe"). (She later filed an amended motion to quash.) The motions to intervene were subsequently granted and briefing continued on the other motions. The briefing was later joined by various amici curiae, including the Electronic Privacy Information Center and IP Justice which support the motions to quash, and various entertainment organizations which oppose the motions. Thereafter, and based on an opinion issued by the Court of Appeals for the District of Columbia Circuit,¹ UNC and N.C. State became uncertain of the lawfulness of the subpoenas and filed their own motions to quash. Finally, because the constitutionality and applicability of the DMCA are being challenged, the United States has now intervened in both cases to defend the statute. All motions have now been briefed by any interested parties and are now before the Court for decisions.

The Digital Millennium Copyright Act

The various arguments raised by the interested parties cannot be placed into context without an initial discussion of the DMCA and, in particular, the sections which give rise to their disagreements. The DMCA was enacted in 1998 and, with respect to the part with which this Court is concerned, it was an effort by Congress,

to resolve the unique copyright enforcement problems caused by the widespread use of the Internet. See Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004); In re Aimster Copyright Litigation, 334 F.3d 643, 655 (7th Cir.2003); DMCA, Pub.L. No. 105-304, 112 Stat. 2860 (1998). Tackling copyright infringement on the Internet required balancing the competing interests of several groups. The first set of competing interests includes those of copyright holders and end users. The DMCA "intended to `balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.'" Rossi v. Motion Picture Assoc. of America, 391 F.3d 1000, 1003 (9th Cir.2004) (quoting S.Rep. No. 105-190, at 21 (1998) (alterations in original)). The second set of competing interests were those of copyright holders and ISPs whose services may be used to infringe copyrights. The DMCA intended to balance the interests of these parties by creating a mechanism for rights holders to inform ISPs of potentially infringing conduct while, at the same time, providing "greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities." Ellison, 357 F.3d at 1076 (quoting S.Rep. No. 105-190, at 20 (1998); H.R.Rep. No. 105-551, pt. 2, at 49 (1998)).

Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1098 (W.D.Wash.2004).

The compromise, as enacted in the DMCA, both preserves copyright enforcement on the internet and provides

immunity to service providers from copyright infringement liability for "passive," "automatic" actions in which a service provider's system engages through a technological process initiated by another without the knowledge of the service provider. H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998 U.S.C.C.A.N. 649; H.R.Rep. No. 105-551(I), at 11 (1998). This immunity, however, is not presumptive, but granted only to "innocent" service providers who can prove they do not have actual or constructive knowledge of the infringement, as defined under any of the three prongs of 17 U.S.C. §§ 512(c)(1). The DMCA's protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe. At that point, the Act shifts responsibility to the service provider to disable the infringing matter, "preserv[ing] the strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment." H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998 U.S.C.C.A.N. 649.

ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir.2001).

As noted by the court in Corbis, 351 F.Supp.2d at 1098-1099:

This balancing effort resulted in a statute that creates "`strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment.'" Rossi, 391 F.3d at 1003 (quoting H.R.Rep. No. 105-551, pt. 2, at 49 (1998)). For instance, a copyright owner who suspects that her copyright is being infringed "must follow the notice and take down provisions set forth in §§ 512(c)(3) of the DMCA." Id. at 1003. Once properly notified, a service provider must "respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing." Recording Industry Ass'n of America v. Verizon Internet Servs., 351 F.3d 1229, 1234 (D.C.Cir.2003). If a service provider fails to take down the potentially infringing material, it exposes itself to copyright liability.

In addition to these notice and take down provisions, the DMCA also establishes several "safe harbors" that protect certain common activities of ISPs. See S.Rep. No. 105-190, at 19; H.R.Rep. No. 105-551, pt. 2, at 41-42. The DMCA safe harbors do not render a service provider immune from copyright infringement. See Ellison, 357 F.3d at 1077. They do, however, protect eligible service providers from all monetary and most equitable relief that may arise from copyright liability. See id.; 17 U.S.C. §§ 512(a)-(d), (j). Thus, even if a plaintiff can show that a safe harbor-eligible service provider has violated her copyright, the plaintiff will only be entitled to the limited injunctive relief set forth in 17 U.S.C. §§ 512(j). See 17 U.S.C. § 512(a)-(d), (j); Verizon Internet Servs., 351 F.3d at 1234.

The "safe harbor" provisions of Sections 512(a)-(d) give limited protection from copyright liability to four types of "service providers."² Subsection (a) addresses transitory digital network communications or service providers who simply allow information to pass through their systems from one user of the service to another person; (b) covers system caching or providers that temporarily store data from one user before passing it on to another person at the request of the user; (c) deals with providers that allow users to store data on the provider's system or network for longer periods of time; and (d) speaks to providers that maintain data on their network or system for use with an information location tool or service. Id. Upon compliance with various requirements set out in their respective portions of the statute, all four types of providers may gain immunity from liability for copyright infringing information that passes through or is stored on their networks or systems by...