United States Court of Appeals
`FOR THE EIGHTH CIRCUIT
`___________
`
`No. 03-3802
`___________
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`In re: Charter Communications, Inc.,
`Subpoena Enforcement Matter
`
`___________________
`
`The Recording Industry Association
`of America,
`
`Appellee,
`
`United States of America,
`
`Intervenor on Appeal,
`
`v.
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`Charter Communications, Inc.,
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`Appellant.
`
`___________________
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`Appeal from the United States
`* District Court for the
`* Eastern District of Missouri.
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`*
`Consumer and Privacy Groups;
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`SBC Internet Services; Verizon
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`Internet Services, Incorporated;
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`Bellsouth Telecommunications;
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`United States Internet Service
`*
`Providers Association; United
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`States Internet Industry Association;
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`Progressive Internet Action;
`Frontier Communications of America, *
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`

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`Incorporated; Southern Star;
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`Amici on behalf of Appellant.
`
`*
`Motion Picture Association
`*
`of America, Incorporated;
`*
`Association of American Publishers;
`*
`Association for Independent Music;
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`American Federation of Musicians
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`of the United States and Canada;
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`AFMA; American Federation of
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`Television and Radio Artists;
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`American Society of Media
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`Photographers; the Authors Guild,
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`Incorporated; Broadcast Music,
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`Incorporated; Business Software
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`Alliance; The Church Music
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`Publishers Association; Directors
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`Guild of America, Incorporated;
`Entertainment Software Association; *
`GraphicArtists Guild, Incorporated; *
`Office of the Commissioner of Baseball; *
`Professional Photographers of America; *
`Recording Artists Coalition;
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`Screen Actors Guild, Incorporated;
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`SESAC, Inc.; Songwriters Guild of
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`America; Software & Information
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`Industry Association; Writers Guild
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`of America, West, Incorporated,
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`**
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`**
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`Amici on Behalf of Appellee.
`
`___________
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`Submitted: June 14, 2004
`Filed: January 4, 2005 (Corrected 1/18/05)
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`___________
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`Before MURPHY, BYE, and BRIGHT, Circuit Judges.
`___________
`
`BYE, Circuit Judge.
`
`This case concerns whether the Digital Millennium Copyright Act (DMCA),
`specifically 17 U.S.C. § 512(h), permits copyright owners and their representatives
`to obtain and serve subpoenas on internet service providers (ISPs) to obtain personal
`information about an ISP's subscribers who are alleged to be transmitting copyrighted
`works via the internet using so-called "peer to peer" or "P2P" file sharing computer
`programs. The dispute arose when the Recording Industry Association of America
`(RIAA) requested the clerk of the district court to issue subpoenas under § 512(h) to
`Charter Communications, Inc. (Charter),1 in its capacity as an ISP, requiring Charter
`to turn over the identities of persons believed to be engaging in unlawful copyright
`infringement. The district court issued the subpoenas and denied Charter's motion to
`quash. We reverse.
`
`I
`
`Starting in the 1980s, internet users began "posting" copyrighted works on
`electronic bulletin boards (BBSs). A BBS allows a user to post files for others to
`download to their computers. Other internet users would then copy and download
`the posted works from the BBS. Beginning in the early 1990s, copyright owners
`began suing individuals who unlawfully disseminated copyrighted music,
`photographs, and software. Such litigation targeted BBSs operated from home
`computers. Advances in technology, however, including the use of MP3 format (a
`
`1Charter is a cable company that serves markets throughout the United States.
`In addition to offering traditional cable television service, it offers broadband internet
`access.
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`compressed digital format) facilitated the piracy, and by 1998 approximately three
`million sound recordings were believed to be downloaded from the internet daily.
`
`In 1999, such activity reached new heights with the emergence of so-called
`peer-to-peer (P2P) systems. Like BBS sites, P2P systems allow users to disseminate
`files stored on their computers to other internet users. Napster was the first and most
`notorious P2P system, and the courts ultimately shut it down via an injunction. See
`A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1099 (9th Cir. 2002); A & M
`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1027 (9th Cir. 2001). Other P2P
`systems have emerged since then, including KaZaA, Grokster, Morpheus, and iMesh.
`It is this new generation of P2P systems being implicated in the present case.
`
`Unlike earlier centralized P2P file-sharing programs which rely upon a single
`facility for identifying files, the new generation of P2P file sharing programs allow
`an internet user to access the files located on other computers through the internet.
`By utilizing the new technology, an internet user can search directly the MP3 file
`libraries of other users, with no web site being involved because the transferred files
`are not stored on the computers of the ISP providing the peer-to-peer users with
`internet access. See Recording Ind. Ass'n of Am. v. Verizon Internet Servs., Inc., 351
`F.3d 1229, 1232 (D.C. Cir. 2003), petition for cert. filed, 2004 WL 1175134 (U.S.
`May 24, 2004) (No. 03-1579). Significant to this case is that Charter's role in
`disseminating the allegedly copyright protected material is confined to acting as a
`conduit in the transfer of files through its network.
`
`Approximately 90% of the content on P2P systems is copyrighted movies,
`software, images, and music disseminated without authorization. It is estimated more
`than 2.6 billion allegedly infringing music files are downloaded monthly. This
`Circuit has never determined whether music downloaded from P2P systems violates
`the copyright owner's rights or is a fair use. The RIAA, to our knowledge, has never
`prevailed in any infringement actions brought against individual downloaders.
`
`-4-
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`The DMCA has been the principal legislative response to such activities; it was
`enacted, however, in 1998, prior to the emergence of P2P systems. The DMCA is
`designed to advance "two important priorities: promoting the continued growth and
`development of electronic commerce[] and protecting intellectual property rights."
`H. Rep. No. 105-551(II) at 23 (1998). Title II of the DMCA was the product of
`lengthy negotiations between copyright owners and internet service providers. It was
`designed to strike a balance between the interests of ISPs in avoiding liability for
`infringing use of their services and the interest of copyright owners in protecting their
`intellectual property and minimizing online piracy. See discussion below. The scope
`of the DMCA is a primary issue in this appeal.
`
`The RIAA is a trade association representing record companies which create,
`manufacture and distribute most of the sound recordings produced and sold in the
`United States. In June 2003, the RIAA announced a nationwide effort to identify and
`sue individuals committing copyright infringement using P2P systems. In this case,
`by using tracking programs, the RIAA ascertained the internet protocol (IP) addresses
`and user names (e.g., paulina400@KaZaA) of ninety-three Charter subscribers
`suspected of trading copyrighted music files. The RIAA logged onto P2P networks
`and observed certain users offering the copyrighted songs for downloading. It
`confirmed the infringement by downloading files offered by individuals and verifying
`such as being unauthorized copies of copyrighted sound recordings. The RIAA
`alleges such subscribers collectively made more than 100,000 copyrighted songs
`available for illegal copying and downloading. Significantly, with an IP address, the
`RIAA can identify the ISP providing internet access to an alleged infringing party.
`Only the ISP, however, in this case Charter Communications, Inc. (Charter), can link
`a particular IP address with an individual's name and physical address.
`
`In this case, purportedly pursuant to § 512(h) of the DMCA, the RIAA obtained
`subpoenas from the clerk of the district court requiring Charter to produce the names,
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`physical addresses, telephone numbers, and email addresses of approximately 200 of
`Charter's subscribers. On October 3, 2003, Charter filed a motion to quash the
`subpoenas on several grounds. During a November 17, 2003, hearing, the district
`court denied Charter's motion to quash, and ordered Charter to disclose by November
`21 the names, addresses, and email addresses of 150 subscribers who had received
`notice of the subpoeanas, and to produce the same information by December 1 for
`another fifty to seventy subscribers who had not yet received notice. See In Re:
`Charter Communications, No. 4:03MC273CEJ at 1 (Nov. 17, 2003) (Minute Order
`directing Charter to comply with the terms of the subpoenas with the exception of
`providing the telephone numbers of the subscribers).
`
`On November 20, 2003, Charter filed a notice of appeal and a motion to stay
`the district court's order. The district court declined to act on the motion to stay its
`order before the compliance deadline. Consequently, on the deadline, November 21,
`2003, Charter filed with this court an emergency motion to stay order of enforcement
`of the subpoenas pending appeal, which was denied then.2 As a result, Charter turned
`over the subpoenaed names and addresses of its subscribers to the RIAA. This appeal
`followed.3
`
`2We note that until the filing of this opinion, there have been no obstacles to
`prevent the RIAA from making use of the information obtained pursuant to the
`subpoenas at issue in this case.
`
`3This case has wide-reaching ramifications, because as a practical matter,
`copyright owners cannot deter unlawful peer-to-peer file transfers unless they can
`learn the identities of persons engaged in that activity. However, organizations such
`as the RIAA can also employ alternative avenues to seek this information, such as
`"John Doe" lawsuits. In such lawsuits, many of which are now pending in district
`courts across the country, organizations such as the RIAA can file a John Doe suit,
`along with a motion for third-party discovery of the identity of the otherwise
`anonymous "John Doe" defendant.
`
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`On appeal, Charter contends the district court erred in enforcing the subpoenas
`because (1) Section 512(h) applies only to ISPs engaged in storing copyrighted
`material and not to ISPs, such as Charter, engaged solely as a conduit for the
`transmission of information by others; (2) a judicial subpoena is a court order that
`must be supported by a case or controversy at the time of its issuance and no case or
`controversy existed here; (3) the enforcement of a § 512(h) subpoena violates the
`privacy protections for cable subscribers in the Communications Act of 1934 set forth
`in 47 U.S.C. § 551(c)(1); and (4) Section 512(h) violates the First Amendment rights
`of internet users.
`
`II
`
`This court reviews de novo the district court's rulings on questions of statutory
`interpretation. Haug v. Bank of Am., N.A., 317 F.3d 832, 835 (8th Cir. 2003).
`
`We begin our analysis with the language of the statute itself. United States
`Sec. & Exch. Comm'n v. Zahareas, 272 F.3d 1102, 1106 (8th Cir. 2001). Section
`512(h) permits a copyright owner to "request the clerk of any United States district
`court to issue a subpoena to [an ISP] for identification of an alleged infringer."
`Significantly, one of the items to be included in any subpoena request is "a copy of
`a notification described in subsection [512](c)(3)(A)." 17 U.S.C. § 512(h)(2)(A).
`This notification is a mandatory part of the subpoena request and a condition
`precedent to the issuance of a subpoena because the statute further provides, as the
`"[b]asis for granting subpoena," that "the notification filed satisf[y] the provisions of
`subsection (c)(3)(A)." 17 U.S.C. § 512(h)(4). Thus, Charter argues § 512(h) only
`authorizes copyright owners to obtain and serve a subpoena on an ISP if the ISP is
`notified in accordance with the provisions of § 512(c)(3)(A). We turn, then, to the
`notification provision.
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`The notification provision of § 512(c)(3)(A) is found within one of the four
`safe harbors created by the statute to protect ISPs from liability for copyright
`infringement under certain conditions. Each safe harbor applies to a particular ISP
`function.4 The first safe harbor, under § 512(a), limits the liability of ISPs when they
`do nothing more than transmit, route, or provide connections for copyrighted material
`– that is, when the ISP is a mere conduit for the transmission. The second safe
`harbor, under § 512(b), protects ISPs for "system caching," that is, instances when
`they provide intermediate and temporary storage of material on a system or network
`under certain conditions. The third safe harbor, under § 512(c), limits the liability of
`an ISP for infringing material "residing on [the ISP's] system or network at the
`direction of its users." The fourth safe harbor, under § 512(d), protects an ISP when
`it merely links users to online locations containing infringing material.
`
`As stated above, the notification provision is found within § 512(c), or the
`storage-at-the-direction-of-users safe harbor.5 The notification provision is also
`
`4A fifth safe harbor, under § 512(e), applies when the ISP is a nonprofit
`educational institution.
`
`517 U.S.C. § 512(c)(3)(A), the notification provision, (to which 17 U.S.C
`§ 512(h)(2)(A) cross-references) provides:
`
`Elements of notification.--
`
`(A) To be effective under this subsection, a notification of claimed
`infringement must be a written communication . . . that includes
`substantially the following:
`
`(i)
`
`(ii)
`
`A physical or electronic signature of a person authorized to
`act on behalf of the owner of an exclusive right that is
`allegedly infringed.
`
`Identification of the copyrighted work claimed to have
`been infringed, or, if multiple copyrighted works at a single
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`referenced, however, in two other safe harbors – subsections (b) and (d) – the "system
`caching" and "linking" safe harbors. Each of these three subsections protect an ISP
`from liability if the ISP "responds expeditiously to remove, or disable access to, the
`material that is claimed to be infringing upon notification of claimed infringement as
`described in [§ 512](c)(3)." 17 U.S.C. §§ 512(b)(2)(E), 512(c)(1)(C), and 512(d)(3)
`(emphasis added). In other words, a specific purpose of the notification provision is
`to allow an ISP, after notification, the opportunity to remove or disable access to
`
`(iii)
`
`(iv)
`
`online site are covered by a single notification, a
`representative list of such works at that site.
`
`Identification of the material that is claimed to be
`infringing 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.
`
`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) (emphasis added).
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`infringing material and thereby protect itself from liability for copyright infringement.
`Therefore, as one might expect, each safe harbor which covers an ISP function
`allowing the ISP to remove or disable access to infringing material (i.e., the storage,
`caching, and linking functions) refers to the notification provision and contains a
`remove-or-disable-access provision.
`
`As Charter notes, the safe harbor provision implicated here is § 512(a), which
`limits the liability of an ISP when it merely acts as a conduit for infringing material
`without storing, caching, or providing links to copyrighted material. Section 512(a)
`does not reference the notification provision of § 512(c)(3)(A), nor does it contain the
`remove-or-disable-access provision found in the three safe harbors created for the
`storage, caching, and linking functions of an ISP. The absence of the remove-or-
`disable-access provision (and the concomitant notification provision) makes sense
`where an ISP merely acts as a conduit for infringing material – rather than directly
`storing, caching, or linking to infringing material – because the ISP has no ability to
`remove the infringing material from its system or disable access to the infringing
`material.
`
`Based on this analysis of the statute, Charter argues § 512(h) does not allow a
`copyright owner to request a subpoena for an ISP which merely acts as a conduit for
`data transferred between two internet users. Charter avers the text and structure of
`the DMCA require the ISP to be able both to locate and remove the allegedly
`infringing material before a subpoena can be issued against it. Thus, where Charter
`acted solely as a conduit for the transmission of material by others (its subscribers
`using P2P file-sharing software to exchange files stored on their personal computers),
`Charter contends the subpoena was not properly issued. We agree.
`
`The United States Court of Appeals for the District of Columbia Circuit
`recently considered this identical issue in holding § 512(h) only permits a copyright
`owner to obtain and serve a subpoena on an ISP for identifying information about an
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`alleged infringer if the ISP is provided statutory notification under 17 U.S.C.
`§ 512(c)(3)(A), which in turn, requires the ISP to be able to both locate and remove
`the allegedly infringing material. Verizon, 351 F.3d at 1233-36.
`
`The court held where an ISP performs only the "conduit" functions addressed
`in § 512(a), § 512(h) does not authorize the subpoenas because the ISP "can not
`remove or disable [a requirement of § 512(c)(3)(A)(iii)] one user's access to
`infringing material resident on another user's computer." Id. at 1235. The court
`further concluded the concept of removing or disabling access to particular material
`could not be equated with the distinct remedy of termination of a subscriber's account.
`Id. As to the RIAA's failure to comply with the requirement of identifying material
`to be removed or disabled, the court also rejected the RIAA's argument it had
`"substantially" met the notification requirements of § 512(c)(3)(A), despite its failure
`to identify material to be removed or disabled. Id. at 1236. Additionally, the court
`emphatically rejected the RIAA's reliance on a broad definition of "service provider"
`in § 512(k)(1)(B), concluding however broadly that internet service provider may be
`defined in that section, a subpoena may issue to an ISP only under the prescribed
`conditions regarding notification set forth in § 512(c)(3)(A). Id.
`
`The court also analyzed the structure of § 512 as a whole, and in particular the
`fact that § 512(h) cross references § 512(c)(3), and subsection (c) pertains to the safe
`harbor for "Information residing on systems or networks at direction of users." The
`court concluded "the references to § 512(c)(3)" in subsections (b) through (d) "lead
`inexorably to the conclusion that § 512(h) is structurally linked to the storage
`functions of an ISP and not to its transmission functions, such as those listed in §
`512(a)." Id. at 1237.
`
`The court further concluded it is the province of Congress, not the courts, to
`decide whether to rewrite the DMCA "in order to make it fit a new and unforeseen
`internet architecture" and "accommodate fully the varied permutations of competing
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`interests that are inevitably implicated by such new technology." Id. at 1238 (internal
`quotations and citations omitted).
`
`We agree with and adopt the reasoning of the United States Court of Appeals
`for the District of Columbia Circuit in Verizon as it pertains to this statutory issue.
`Thus, because the parties do not dispute that Charter's function was limited to acting
`as a conduit for the allegedly copyright protected material, we agree § 512(h) does not
`authorize the subpoenas issued here. As a court we are bound to interpret the terms
`of the statute and not to contort the statute so as to cover the situation presented by
`this case.
`
`
`For purposes of this appeal, we do not address the constitutional arguments
`presented by Charter, but do note this court has some concern with the subpoena
`mechanism of § 512(h). We comment without deciding that this provision may
`unconstitutionally invade the power of the judiciary by creating a statutory framework
`pursuant to which Congress, via statute, compels a clerk of a court to issue a
`subpoena, thereby invoking the court's power. Further, we believe Charter has at
`least a colorable argument that a judicial subpoena is a court order that must be
`supported by a case or controversy at the time of its issuance. We emphasize,
`however, for purposes of this appeal we do not reach these issues and have decided
`this case on the more narrow statutory grounds.
`
`Accordingly, it is hereby ordered the November 17, 2003, order of the United
`States District Court for the Eastern District of Missouri enforcing various subpoenas
`for personal information about Charter's subscribers is hereby vacated. This matter
`is hereby remanded so the district court may: (1) Order the RIAA to return to Charter
`any and all information obtained from the subpoenas; (2) Order the RIAA to maintain
`no record of information derived from the subpoenas; (3) Order the RIAA to make
`no further use of the subscriber data obtained via the subpoenas; and (d) Grant such
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`other relief not inconsistent with this order the district court deems appropriate in
`these circumstances.
`
`MURPHY, Circuit Judge, dissenting.
`
`Because the court focuses too narrowly in its reading of the DMCA, overlooks
`certain plain language used by Congress, and fails to give effect to the statute as a
`whole, I respectfully dissent. The subpoena power created by Congress in § 512(h)
`does not limit the type of service provider for whom subpoenas may be issued in the
`fight against internet piracy. Section 512(h) authorizes a copyright owner or its
`representative to request a subpoena to a service provider in order to identify
`infringers, and the statutory definition of "service provider" in § 512(k) specifically
`includes conduit service providers such as Charter. Moreover, no other section of the
`statute imposes the limitation on the subpoena power urged by Charter.
`
`In enacting the DMCA Congress sought to protect both the interests of
`copyright holders and of internet service providers concerned about their own liability
`for infringement by their customers. The legislative solution in response to these
`concerns significantly limited the liability of ISPs for infringement by their customers
`and provided copyright holders more direct means to attack digital piracy. The
`subpoena provision in § 512(h) is one of these means, and this provision is of special
`value to a copyright owner seeking to stop infringement through conduit service
`providers. That is because a conduit ISP does not store materials for downloading
`and is thus cannot directly remove or disable access to any infringing material. By
`using the § 512(h) subpoena power to learn the identity of conduit service subscribers
`who infringe, copyright holders are able to take steps to protect their interests, seek
`compensation for their misappropriated property, and stop infringement.
`
`To interpret the statute in the way Charter urges, and the court adopts, is to
`block copyright holders from obtaining effective protection against infringement
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`through conduit service providers. The repercussions of infringement via the internet
`are too easily ignored or minimized. Regarded by some as an innocuous form of
`entertainment, internet piracy of copyrighted sound recordings results in substantial
`economic and artistic costs. See Jeff Leeds, Music Industry Turns to Napster Creator
`for Help, N.Y. Times, December 3, 2004, at C1 (internet file trading networks permit
`fans to obtain "virtually any song at any time...gratis" while "ravaging CD sales and
`weakening the underpinnings of the industry"). It is not just faceless corporations
`who pay the cost. Local music retailers are also vulnerable to the allure of free music,
`see David Segal, Requiem for the Record Store; Downloaders and Discounters Are
`Driving Out Music Retailers, Wash. Post, Feb. 7, 2004 at A1 (sales of record retailers
`"hammered by Internet piracy" and now in "serious trouble"), and artists can lose
`economic incentive to create and distribute works.
`
`Copyright laws were foreseen by the framers of the Constitution as "the engine
`of free expression." Harper & Row Publishers, Inc., v. Nat’l Enters., 471 U.S. 539,
`558 (1985); see U.S. Const. art. I, § 8, cl. 8 (giving Congress the power to "promote
`the Progress of...useful Arts, by securing for limited Times to Authors...the exclusive
`Right to their respective Writings"). Piracy substantially undermines this incentive.
`Annual losses to copyright owners even before the expansive growth in peer to peer
`file sharing were estimated to be $11 to $20 billion. H. Rep. No. 105-339, at 4
`(1997). Since copyright holders are effectively unable to recover from the designers
`of file trading software, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd.,
`380 F.3d 1154 (9th Cir. 2004), cert. granted, 2004 WL 2289054 (2004), or from
`internet service providers, see 17 U.S.C. §§ 512(a)-(d), action against identified
`infringers offers the only practical means to protect the interests of copyright holders.
`
`The subpoena requested by the RIAA in this case was authorized by and in
`compliance with the DMCA, and the district court's order enforcing it should be
`affirmed.
`
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`

`
`I.
`
`The increasing use of peer to peer file sharing programs makes the DMCA
`subpoena power very significant. Such programs were already being developed at
`the time of the congressional hearings preceding the passage of the DMCA. See
`Electronic Piracy and the No Electronic Theft (NET) Act: Hearing Before the
`Subcomm. on Courts and Intellectual Property of the Comm. on the Judiciary, 105th
`Cong. 17-18 (1997) (statement of Deputy Assistant Attorney General Kevin
`DiGregory about the direct transfer of copyrighted material through electronic
`bulletin boards, file transfer protocol sites, and email). Peer to peer programs allow
`individual internet users to access infringing materials located on the personal
`computers of others and to download them onto their own equipment. These
`programs are used to transmit infringing materials through conduit services.
`Congress recognized the need to address infringement through conduit service
`providers in the DMCA, and its opening section applies to networks which transmit
`infringing materials at the direction of their users. § 512(a).
`
`While copyright owners are now able to use special software to identify the
`internet protocol (IP) addresses and the service providers used by traders in
`copyrighted files, it is the ISPs who have the names and personal addresses of the
`infringers. The only viable way for copyright owners to vindicate their intellectual
`property rights in a timely manner when infringing materials are transmitted across
`peer to peer networks is to subpoena the ISPs for disclosure of the identities of
`alleged infringers.
`
`The effectiveness of the § 512(h) mechanism may be seen in this case.
`Appellant RIAA, which represents the owners of copyrights to an extensive collection
`of sound recordings, used a tracking program to discover that ninety three of Charter
`Communication's internet subscribers were offering more than 100,000 copyrighted
`recordings of its members for downloading. RIAA downloaded the files and
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`confirmed that the offerings were illegal copies of copyrighted materials. It then
`requested a subpoena from the clerk of the Eastern District of Missouri to obtain from
`Charter the names, physical and email addresses, and telephone numbers of the
`infringing subscribers. The clerk issued the subpoena. After it was served on
`Charter, it filed a motion in the district court to quash it. The district court held a
`hearing before ruling, then issued an order denying Charter's motion to quash.
`Although the court enforced the subpoena, it denied RIAA's request for subscriber
`telephone numbers. Charter's motion for an emergency stay was denied by this court,
`and Charter then provided RIAA with the subpoenaed information.
`
`The statutory right to request a subpoena is not limited by the type of ISP. Any
`copyright owner or authorized agent "may request the clerk of any United States
`district court to issue a subpoena to a service provider for identification of an alleged
`infringer." § 512(h)(1) (emphasis added). A request is to be made by filing with the
`clerk the following: a copy of a notification containing information outlined in §
`512(c)(3)(A), a proposed subpoena, and a sworn declaration that the applicant's
`purpose is solely to identify the alleged infringer to protect its statutory rights. §
`512(h)(2). If the notification and declaration are in proper form, the clerk shall issue
`the subpoena "expeditiously." § 512(h)(4). This permits a copyright owner to
`proceed directly against an infringer without delay and thereby avoid further losses.
`
`Although Charter contends that the subpoena power in the DMCA is limited
`by the function of the ISP, such a limitation is not to be found in a plain reading of
`the DMCA. To the contrary, the statute defines "service providers" in § 512(k) as all
`"provider[s] of online services or network access," including conduit providers who
`offer the "transmission...of material of the user's choosing, without modification." §
`512(k)(1). If Congress had wanted to limit the type of ISP subject to a statutory
`subpoena, it could have easily specified that in § 512(h), but it did not. In the absence
`of such a limitation, the statute's definition of "service provider" in § 512(k)(1)
`controls, and it includes Charter. See United States v. Missouri Pac. Ry. Co., 213 F.
`
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`169, 173 (8th Cir. 1914) ("[W]here the legislative body makes no exception to a
`general and clear declaration..., the conclusive presumption is that it intended to make
`none, and it is not the province of the courts to do so.").
`
`Following the approach of the D.C. Circuit in Verizon, the majority relies on
`the § 512(h) reference to the notice provision in § 512(c)(3)(A) to read a limitation
`into the availability of subpoenas. One of the documents to be included in a
`subpoena request is "a copy of a notification described in subsection (c)(3)(A)."
`§ 512(h)(2)(A). The notification subsection is entitled "Elements of notification" and
`it lists six: (i) the signature of someone authorized to act on behalf of the owner of the
`infringed copyright; (ii) identification of the copyrighted work claimed to be
`infringed; (iii) identification of the infringing material; (iv) information reasonably
`sufficient to allow the ISP to contact the complaining party; (v) a statement of the
`complaining party's good faith belief that the material is being used in an
`unauthorized manner; and (vi) a statement that the notification is accurate and the
`complaining party is authorized to act on behalf of the owner. See § 512(c)(3)(A).
`
`The majority focuses on just one of these six elements to arrive at its position
`that § 512(h) subpoenas were not intended by Congress to be directed at conduit
`service providers. Its focus is on the third notice element which requires
`identification of the infringing material. That subsection reads as follows:
`
`Identification of the material that is claimed to be infringing or to be the
`subject of infringing activity and that is to be removed or access to
`which is to be disabled, and the information reasonably sufficient to
`permit the service provider to locate the material.
`
`§ 512(c)(3)(A)(iii) (emphasis added). The majority claims that this language excludes
`conduit ISPs, but the language does not say that. The subsection defines the material
`to be identified in two ways: (1) material that is "claimed to be infringing" and (2)
`material that is "the subject of infringing activity and that is to be removed or access
`
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`to which is to be disabled." Id. In the statute, the two definitions are joined by the
`word "or," a word commonly used to distinguish between alternatives. See United
`States v. Wilson, 41 F