The Future of the Digital Millennium Copyright Act (DMCA) Subpoena Power on the Internet in Light of the Verizon Cases

I. INTRODUCTION With the proliferation of the Internet, copyright infringement has become an increasingly significant problem. The impact of this situation is realized not only in terms of the financial loss to an individual but also in terms of the losses to the United States' economy as a whole.1 Further, the failure to protect authors' works creates a disincentive for authors to publish such works.2 The protection of America's creative genius has been an issue since the birth of the nation. Congress was specifically given authority to protect the intellectual property of inventors and authors in America.3 While laws regarding copyright protection have been in place for over two centuries,4 the advent of the Internet has allowed the efforts of copyright infringers to quickly outpace the legal mechanisms designed to deter and punish infringement. Committing the physical act of copyright infringement is arguably easier, faster, and more efficient than ever before.5 Once posted on the Internet, work becomes accessible to millions of members of the Internet community.6 Search engines make it easy to find copies of specific works, such as MP3 song files, and the birth of peer-to-peer (P2P) file sharing allows Internet users to exchange files directly without utilizing a centralized server. The Digital Millennium Copyright Act (DMCA)7 was enacted in 1998 to combat the problem of copyright infringement in a world of digital communication, where more information is traded daily than ever before. However, the DMCA was born into a world where technology is moving so fast that, by the time it took effect, the legislation was already largely ineffective against several new advancements. For example, P2P file sharing had not yet been introduced in 1998.8 In 2003, the D.C. District Court heard two separate cases involving DMCA subpoenas and P2P file sharing. The first case, In re Verizon Internet Services, Inc. Subpoena Enforcement Matter? was quickly followed by a second case, also named In re Verizon Internet Services, Inc. Subpoena Enforcement Matter, involving a separate subpoena but the same cause of action. These two cases, along with their combined appeal proceeding in Recording Industry Ass 'n of America, Inc. v. Verizon Internet Services, Inc., have served both as tests of the subpoena power placed in the DMCA12 and as the battleground between the competing interests of copyright protection and privacy rights. The Verizon cases began when the Recording Industry Association of America (RIAA) subpoenaed Verizon Internet Services, Inc. (Verizon), an Internet Service Provider (ISP), to produce the identity of a subscriber that the RIAA sought to charge with copyright infringement.13 Verizon refused to produce the identity of the subscriber, and Verizon I was born. Verizon claimed that it was not subject to the DMCA subpoena power and lost.14 While the first case was on appeal, Verizon II was born out of another refusal by Verizon to surrender the identity of a subscriber to the RIAA, this time on constitutional grounds.15 Again, Verizon lost and appealed.16 But Verizon prevailed in Verizon I & II Appeal. The appellate court scrutinized the language of the DMCA, stating that more express language was required before the court could conclude that, with regard to the scope of the DMCA subpoena power, it was the intent of Congress to allow anonymity to be breached so easily.17 This appellate decision may well set the tone for a cautionary stance in interpreting congressional intent with regard to the Internet, and it may also encourage a preference for legislative solutions over judicial ones for dealing with emerging copyright law. The Internet is more than just a data-sharing tool. It can also serve as an instrument for democracy and free speech. The Supreme Court has compared Internet chat rooms with free speech methods that were heralded during the early days of American democracy. …