20030627_brief_of_us

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici All parties,intervenors,and amici appearing beforethe district court and in this Court are listed in the Brief for the Appellant. B. Rulings under Review References the rulings at issueappearin the Brief for the Appellant. to c. Related Cases The cases review havenot previouslybeenbeforethis Court or anyothercourt. Counsel on for the United Statesis not awareof anyotherrelatedcases currentlypendingin this court or in any other court. J 4-:c~~~ ~ (..~,~ ,Scott R. McIntosh Counselfor the United States TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES TABLE OF AUTHORITIES GLOSSARY STATEMENT OF JURISDICTION STATEMENT OF ISSUES STA ruTES AND RULES STATEMENT OF THE CASE I. 1 . . . . . . . III VI 1 2 StatutoryBackground. The PresentControversy 2 5 .6 n SUMMARY OF AR GUMENT ARGUMENT 17 V.S.C. 512(h) DOES NOT EXCEED THE LIMITS OF THE JUDICIAL POWER UNDERARllCLE ill A. 8 Section512(h)'sRequirements EnsureThat an Article ill Controversy Exists Betweenthe Copyright Owner and the Alleged Infringer. . . . . An Article III ControversyExists Betweenthe Copyright Owner and the Online ServiceProvider. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. 16 ll. Section512(h) DoesNot Violate the First Amenc~ent A B. Section512(h)Is Not UnconstitutionallyOverbroad Verizon'sObjectionsto Section512(h)'sProceduralRequirements Add Nothing To Its Overbreadth Claim. . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION TABLE OF AUTHORITIES Cases Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227 (1.937) 946) Blount v. ~, 400 U.S. 410 (1971) Page 1.8 1 21 . Broadrick v. Oklahoma, 413 U.S. 601 (1973) 19 6 1 18 Churchof Scientolo2:V United States,506 U.S. 9 (1992) v. Feist Publications. Inc. v. Rural Tele}2honeService Co., 499 U.S. 340 (1991) H~er & Row Publishers.Inc. v. Nation Entemrises, 471 U.S. 539 (1985) HoustonBusinessJournalv. Office of the Com~trollerof the Currency, 1 12 86 F.3d 1208 (D.C. Cir. 1996) In re Letter Ro2atorv,42 F.3d 308 (5th Cir. 1995) M.m.h v. Chambers, 463 U.S. 783 (1983) , 14 10 6 1 19 18 . Nashville. Chattanoo2a St. Louis Rv. v. Wallace,288 U.S. 249 (1933) & Office of Thrift Sur;~rvision Dobbs,931 F.2d 956 (D.C. Cir. 1991 v. StenograQh L.L.C. v. BossardAssociates. Inc., 144F.3d 96 (D.C. Cir. 1998) Virginia v.~, No. 02-371(U.S. June 16,2003) Zacchini v. ScriQQs-Howard,433 U.S. 562 (1977: Constitution, Statutes, and Rules Const.Art. I, § 5, cl. Const. Amend. 1 ... Const. Art. ill 12 pasSim passim Authorities upon which we chiefly rely aremarkedwith asterisks. ., Digital Millennium Copyright Act, Pub.L. No. 105-304, 12 Stat. 2860 (1998) , passIm (codified in various provisions of Title Emergency Planningand CommunityRight-to-Know Act, 42 V.S.C. 11001et seq. EmployeeRetirementIncomeSecurityAct, 29 U.S.C. 1001et seq. JudiciaryAct of 1789t 1 Stat.88t 90 Toxic Substances Control Act, IS U.S.C. 2601 et seq. ..., .l7U..S.C.. 11 liV.S.C. U.S.C. 17) 17 16 , ..."""' , , , , , , ' , , ' , , 14 17 12 12 12 8 3 3 3 3 3 3 512(a)-(d) 512 512(a) § 106(1), """"""""""" 2U.S.C.388 9U.S.C.7 7V.S.C.2354(a) .l7V..S.C. 17V.S.C.512(h)(1) 17 17V.S.C. 17 17 17 17 U.S.C. U.S.C. V.S.C. V.S.C. V.S.C. (3) """"""""""'" 512(f) 512(b)(2)(E) 512(c)(1)(A)(iii) 512(h) 512(c) 512(c)(3)(A) .., , 22 passIm 3 10 8,20 1 1 1 1 1 12 6 17 17 12 17 17 12 14 , . 29 28 17V.S.C. 17U.S.C. 17 U.S.C. V.S.C. U.S.C. 1132(a)(I)(A) 1291 1337(a) 1331 1782 1338(a) ' 28 28 28 28 28U.S.C. U.S.C. U.S.C. U.S.C. V.S.C. 512(h)(2)(A) 512(h)(2)(C) 512(h)(6) 2403(a) 29 U.S.C. 1132(c)(1) 42 42 Rev. 35 45 U.S.C. V.S.C. U.S.C. U.S.C. Stat. 24 § 11021(a) 11046(a)(I), 157(h) 866 , (b) , , , , , , . Fed. R. Civ. P. 65(b) Fed. R Civ. P. 27 12,13,14,15 15 , -lV- GLOSSARY DMCA IF Digital Millennium Copyright Act, Pub. L. No.1 05-304, 12 Stat. 2860 (1998) (codified in variousprovisionsof Title 17) InternetProtocol RecordingIndustryAssociationof America RIAA -Vl- STATEMENT OF THE CASE I. Statutory Background The past decadehas witnessedthe explosive growth of electronic commerce and the accompanyingrise of digital networks that facilitate the reproduction and distribution, both authorized and unauthorized, of copyrighted works in electronic fonn. The Digital Millennium Copyright Act representsCongress'sprincipal legislative responseto these changes. 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(11),at 23 (1998) ("HouseReport"). Among the issuesaddressed the DMCA is the role of online serviceproviders in the by electronic disseminationof copyrighted works. Online service providers are instrumental in "provid(ing) new and powerful ways for the creators of intellectual property to make their works available to legitimate consumers in the digital environment." House Report at 23. At ilie same time, however, the services provided by online service providers may also be misused by persons engagedin the unauthorized reproduction and distribution of copyrighted works. Because copyrighted works in digital fomt "can be copied and distributed worldwide virtually instantaneously" via the Internet, copyright owners require assurance that their works will be protected against piracy when they are made available on the Internet. S. Rep. No. 105-190, at 8 (1988) ("SenateReport"). But if online serviceproviders face potential derivative liability for infringing usesof their services, they may be unwilling to develop new services and capabilities that will facilitate legitimateelectroniccommerce.Id. -2- Title n of the DMCA attemptsto strike a balancebetweenthe interestof serviceproviders in avoiding liability for infringing usesof their servicesand the interest of copyright owners in expanding digital commerce while minimizing onlinepiracy. SeePub.L. No, 105-304,§§201-203, 112 Stat. 2877-2886,codified at 7 V.S.C. 512. Title II offers protection to serviceprovidersby creatingstatutory"safeharbor"provisionsthat limit potential liability for monetaryandinjunctive relief. See 17 U .S.C. 512(a)-(d). Among theseprovisions are 17 U .S.C. 512(a), which createsa safe harbor for datatransmission, and 17 U .S.C.512(c), which creates safeharbor for datastorage. a In exchange the protectionandcertaintythat thesestatutorysafeharborsoffer to service for providers,Title n seeks provide "strongincentivesfor serviceprovidersandcopyrightownersto to cooperate detectand deal with copyright infringementsthat takeplace in the digital networked to environment." Senate Report at 20. If a serviceprovider wishesto avail itself of Title Irs safeharbor protections, when a copyright owner notifies the provider that one of its customers is engaged In infringing activities, the provider must take prescribedstepsto disableaccess the infringing to material. See17V.S.C. 512(b)(2)(E),512(c)(I)(A)(iii), 512(d)(I)(C). In addition,Title II obligates service providers to assist copyright owners by providing information about the identity of subscribers who areengaged copyrightinfringement. Title n implementsthis obligationthrough in 7 U.S.C. 512(h),the provision at issuein theseappeals. Section512(h)authorizes copyrightowneror its representative "request clerk of any a to the United Statesdistrict court to issuea subpoena a serviceprovider for identification of an alleged to infringer. ." .. 17V.S.C. 512(h)(I). In orderto obtaina subpoena, requester the mustpresentthe clerk with a "notification of claimedinfringement." [d. § 512(h)(2)(A) (incorporatingnotification requirements ofid. § 512(c)(3)(A» The notification must identify the work claimedto havebeen -3- infringed and the materialclaimedto be infringing, andthe requester must statethat it "hasa good faith belief that the useof the materialin the mannercomplainedof is not authorized"andthat the infonnation in the notification is accurate. [d. § 512(c)(3)( A )(ii)-(iii), (v )-( vi). The requester must also submit a sworn declarationthat the subpoena being sought "to obtain the identity of [the] is allegedinfringer and that suchinfonnation will only be usedfor the purposeof protectingrights" under Title 1. must presentthe clerk with a proposed Id. § 512(h)(2)(C: Finally, the requester subpoena "authorize[s] order[s]theservice that and provider. . * to expeditiously disclose. . . infonnation sufficient to identify the alleged infringer'" * ... to the extent such infonnation is availableto the serviceprovider." [d. § 512(h)(2)(B),512(h)(3). If the proposedsubpoena, notification, and the sworn declarationare in proper order, the Section512(h)providesfor the clerk to issueandsign the subpoena give it to the requester and for delivery to the serviceprovider. Id. § 512(h)( Upon receiptof the subpoena, serviceprovider 4). the is obligated to 'expeditiously disclose * * * the infonnation required by the subpoena, notwithstandingany other provision of law.,II Id. § 512(h)(5). Exceptasotherwiseprovidedby Section512 itself, the procedure issuance delivery for and of the subpoenaand the remedies for noncompliance are governed "to the greatestextent practicable" by the provisions of the Federal Rules of Civil Proceduregoverning issuance,service, and enforcement subpoenas of ducestecum. Id. § 512(h)(6). Thoseprovisions are found primarily in to Rule 45, Rule 45 provides for subpoenas be issuedin the name of the court, and the failure 'without adequateexcuse"to obey a subpoena may be deemeda contempt of court [d. Rule 45(a)(l)(A), 45(e). A personsubjectto a subpoena may move to quashor modify the it, and ifhe serves timely written objectionto disclosure thematerialsdesignated the subpoena, serving of by the -4- party is not entitled to inspectthe materials"exceptpursuantto an order of the court by which the subpoena was issued." Id. Rule 45(c)(2)(B), 45(c). II. The Present Controversy In July 2002,RIM obtainedandserveda subpoena Verizon pursuantto Section512(h). on The subpoena soughtidentifying infonnation aboutan anonymous individual who was allegedto be usingVerizon'snetworkto engage theunauthorized, henceunlawful, distribution of copyin and righted songs, RIAA provided a list of more than 600 soundfiles allegedly made available for downloading by the user in a single day, the time and date of the downloads, and a sworn declaration that the infonnation was sought in good faith and would be used only in connection with protecting the legal rights ofRIAA's members. Opinion of January21,2003 ("First Op.") at 5 [IA~. Verizon declined to comply with the subpoena. Verizon contendedthat Section 512(h) appliessolely wherethe allegedinfringementinvolvesdatastorageunderSection512(c) and does not apply where,ashere,the serviceis engaged datatransmission in underSection512(a). RIAA then moved to enforce the subpoenapursuant to Section 512(h)( 6) and Rule 45( c)(2)(B). On January 23,2003, the district court issuedan opinion and order grantingRIAl\'s motion, holding that the subpoenamechanismcreatedby Section 512(h) applies equally to providers engagedin data transmissionandprovidersengaged datastorage. in InF ebruary2003,RIAA servedVerizonwith a second subpoena underSection512(h). The secondsubpoena, the first, soughtthe identity of a subscriber like who usedVerizon'sservicesto makehundreds copyrightedsoundrecordings of availablefor illegal downloadingover the Internet. Opinion of April 24, 2003 ("SecondOp.") at 1 [IA-1. Verizon moved to quashthe second subpoena, arguingthat RIAA's invocationof Section512(h)violatedArticle ill andtheFirst Amend- -5- ment. In response, United Statesintervenedto defendthe constitutionalityof Section512(h) the pursuantto 28U.S.C. 2403(a). On April 24, 2003, the district court issuedan opinion and order rejecting Verizon's constitutional claims and denying Verizon's motion to quash the second subpoena.. SUMMARY OFARGUMENT Verizon arguesthat while 17U.S.C. 512(h)may be freely usedto obtain the identity of an allegedinfringer after the copyrightownerhasfiled a complaintagainstthe infringer, Article ill of the Constitutionprecludes useof Section512(h) in situationswhereno infringementaction the is pending. In so arguing,Verizon confusesthe existenceof an Article ill controversywith the pendency a complaint. The exerciseof judicial power underArticle ill is dependent of only on the former, not on the latter. As long as an Article ill controversyis present,Congressis free to authorizefederalcourtsto issuediscoveryordersrelatingto the controversy without insistingon the has filing of a complaint. That is preciselywhat Congress donehere. When a subpoena is sought under Section 512(h), the requirements the statuteitself ensurethat the subpoena tied to an of is actualcontroversy underthe copyrightlaws between copyrightownerandan allegedinfringer. In a addition,the subpoenas this casearesupported the existence anadditional. in by of controversy the controversybetweenthe copyright owner and the service provider over accessto the alleged 1 It is the understanding the UnitedStates Verizonhasnow complied of that with both subpoenas. Verlzon'scomplianceraisesa questionofmootness. Resolutionof that questionturns on whetherVerizon is seekingthe return of any documents turnedover pursuantto the subpoenas and, if not, whetherthe controversybetweenRIAA and Verizon is capableof repetition yet will evadereview. SeegenerallyChurchof Scientologyv. United States,506 U.S. 9 (1992); Office of Thrift Supervisionv. Dobbs,931 F.2d 956, 957-59(D.C. Cir. 1991). -6- infringers'identities. Either of thesecontroversies sufficient to bring Section512(h) within the is ambit of Article III 2. Verizon also claims that Section512(h) is subjectto facial invalidation underthe First Amendment overbreadth doctrine. To invalidate Section 5 12(h) on the basis of overbreadth, Verizon has the burden of demonstratingthat the law impermissibly burdens a substantialamount of protectedspeech,both in absolutetenDSand in relation to the legitimate scope of the statute. Verizon haswholly failed to carry that burden. The online copyright infringers who arethe target of Section512(h) are not engaged protecte1speech and, indeed,arenot engaged speech in in at all. Verizon has identified nothing about the statuteitself, and has introduced no evidence,to suggest that Section512(h) is likely to be applied impennissibly in a significant numberof cases. Verlzon'sproceduralobjectionsto Section512(h) addnothing to the force of its First Amendment claim, for two reasons:first, because Section 512(h) does not impose the kind of restriction on speechthat has been held to require procedural safeguards,and second,becauseit contains proceduralrequirements that minimize the risk that anonymous speakers will have their identities improperly disclosed. .7- ARGUMENT2 I. 17 U.S.C. 512(h) DoesNot Exceed the Limits of the Judicial Power Under Article III A. Section 512(h)'s Requirements Ensure That an Article III Controversy Exists Betweenthe Copyright Owner and the Alleged Infringer The CopyrightAct vestscopyrightownerswith, inter alia, the exclusiverights to reproduce their copyrightedworks and to distribute copiesof thoseworks to the public. 17U.S.C. § 106(1), (3). The advent of the Internet has placed theserights in jeopardy, not only by facilitating the wholesalecopying and distribution of copyrightedworks without authorizationof the copyrigpt owner, but also by pennitting infringers to concealtheir identitiesbehind the anonymityof an IP address. If copyright owners are to be able to enforcetheir legal rights againstinfringers in the digital age,they must be able to identify them - and they cannotdo so without the assistance of serviceproviders,like Verizon, who provide infringerswith Internetaccess.Section512(h) is the mechanismchosenby Congress enablecopyright owners "to obtain the identity of an alleged to infringer * * * for the purpose of protecting [the owners'] rights" under the Copyright Act. 17 U.S.C. 512(h)(2)(C: The district court held alternatively that the issuanceof a subpoenaunder Section 512(h) does not involve an exerciseof judicial power underArticle ill and that Article ill doesnot confine the exerciseof judicial power to instances which a suit is pendingin federalcourt. It is unnecessary in 2 The threshold issuein theseappeals whether, a statutory is as matter,Section512(h) authorizes the issuanceof the subpoenasat issue in these cases. The United States has intervened for the pwpose of defending the constitutionality of Section 512(h) and expressesno views regarding this statutory question. For pwposes of addressingthe constitutional questions in these appeals,the United States assumesthat Section 512(h) provides sufficient statutory authority for the subpoenas at issue here. -8- for this Court to resolvethe disputebetween Verizon andRIAA over the first of thesetwo holdings, for the district court'ssecond holding is demonstrably correct,andthat holding sufficesto dispose ofVerizon's Article ill claim evenif the issuance ora subpoena under Section512(h)involves an exerciseof judicial power that must comportwith Article ffi. 1. It is a commonplace that the "judicial Power of the United States" is confined to casesand controversies within the ambit of Article ill. TheheartofVerizon's argument that Section512(h) is authorizes district courtsto issuesubpoenas the absence a pendingcaseor controversy"and, "in of in sodoing,necessarily crosses boundaries Article ill. Verizon Br. 12. Verizon concedes the of that when Section512(h) is employedafter a copyright owner hasfiled a complaint againstan alleged infringer. the controversybetweenthe copyright owner and the infringer suffices to meet the demandsof Article ill. See Verizon Br. 22 n.S. But Verizon insists that Section 512(h) is categorically unconstitutionalunder Article ill whenever it is employedbefore the filing of a complaint againstthe infringer. The central fallacy of this argumentis that it confusesthe existenceof an Article III controversywith the pendencyof a complaint. It can be assumed presentpurposesthat the for judicial power maybe exercised only in the contextof an actualcontroversyunderArticle ill. But it is a non sequitur that the judicial power is confinedto situationsin which a lawsuit is pending. The filing of a complaint doesnot createa controversyunderArticle ill; it is simply a procedural mechanism bringing an existing controversy for beforethe court. As long asan actualcontroversy in the Article ill senseexists, a federal court is free to exercisejudicial power within the limits imposedby Congress, and Congress turn is free to prescribewhateverproceduralmechanisms in -9- it thinks most appropriate the invocationandexerciseof judicial power. As the Supreme for Court explainedin Nashville, Chattanooga St. Louis Ry. v. Wallace,288 U.S. 249, 264 (1933): & [T]he Constitution does not require that [ a] case or controversy should be presented by traditional fom1s of procedure, invoking only traditional remedies. The judiciary clause of the Constitution defmed and limited judicial power, not the particular method by which that power might be invoked. It did not crystallize into changeless fom1 the procedure of 1789 as the only possible means for presenting a case or controversy otherwise cognizable by the federal courts. In this case.Congresshas chosento allow a copyright owner to seeka subpoenawithout first filing a complaint against the alleged infringer. Once it is recognized that the existence of an Article ill controversy doesnot turn on the pendency a complaint,the only questionis whetherthe proof visions of Section512(h) are sufficient to confine the operationof this subpoena mechanismto settingsin which an actualArticle ill controversyis present. As the district court recognized, the answerto that questionis affinnative. The statutoryprerequisites the issuance a subpoena for of underSection512(h) ensurethat thereis a genuinecontroversyarising underfederallaw between the copyrightowner and the allegedinfringer, and the existenceof that controversyempowers the district court to issue a subpoenain aid of the copyright owner's efforts to vindicate his federal rights. As explainedabove, a requesterwho seeksa subpoenaunder Section 512(h) must first submit a notification of claimedinfringement. 7 U.S.C. 512(h)(2)(A) (incorporatingnotification requirements ofid. § 512(c)(3)(A». The notification must identify the work claimedto havebeen infringed andthe materialclaimedto be infringing, andthe requester must statethat it "has a good faith belief that the useof the materialin the mannercomplainedof is not authorized"andthat the infonnation in thenotification is accurate.Id. § 512(c)(3)(A)(ii)-(iii), (v)-(vi). Section512(h)thus requiresthe requesterto set forth the substantialequivalentof a prima facie claim of copyright 10. infringement. Second at 30-31[JA ~; Op. seeFeist Publications,Inc. v. Rural Telephone Service Co.,499 U.S. 340,361(1991);StenographL.L.C. v.BossardAssociates, Inc., 144F.3d96,99 (D.C. Cir. 1998) Whetherthe requesteris correct that the allegedinfringer has committed copyright infringementis, of course,a separate question. But the existence an Article ill controversydoes of not depend whetherthe complainingparty is ultimately entitledto prevail. Cf Bell v. Hood. 327 on u.s. 678,682 (1946)(jurisdiction over claimsarisingunderfederallaw "is not defeated... by the possibility that the averments might fail to statea [valid] causeof action") Contrary to Verizon's suggestion, there is no tension between the district court's holding that Section512(h) may be invoked outsidethe confinesof pendinglawsuitsand this Court'sdecision in HoustonBusiness Journal v. Office of the Comptroller of the Currency,86 F.3d 1208(D.C. Cir. Journal, this Court held that a federal court lacks power to issuea 1996) In Houston Business subpoena connectionwith an underlyinglegalcontroversy in that "is not evenasserted be within to that federal-court jurisdiction ." 86 F.3dat 1213. In soholding, the Court did not suggest Article ill confinesthe subpoena power to pendingfederalsuits To the contrary,the Court recognizedthat "the discover)' de,'ices in federal Court stand available to facilitate the resolution of actions cognizablein federalcourt," and that Article ill pennits a federalcourt to exercisethe subpoena power not only when it "has subject-matter jurisdiction over the underlyingaction," but also "in certain circumstances where an action is cognizable in federal court." [d. The touchstoneof constitutionality underHoustonBusinessJournal is thus whethera subpoena being sought in is connectionwith a controversy is cognizablein federalcourt That is manifestlytrue of Section that S12(h),both asa generalmatterand in the specific circumstances this case of 2. As the district court recognized, subpoena the mechanismemployedby Section512(h) is hardly a radical innovation in federaljudicial practice. SeeSecondOp. at 10-1 (JA~. A variety of statutesand rules pern1itfederal courts to issue discovery orders in connectionwith controversies arenot the subjectof pendinglitigation in federalcourt. SeeFed.R. Cjv. P. 27; that 2U.S.C. 388 (subpoena electioncontestsbeforeHouseof Representatives); for 7U.S.C. 2354(a) (subpoena administrativeclaims underPlant Variety ProtectionAct); 9 V.S.C. 7 (subpoena for for arbitrationproceedings underFederal Arbitration Act); 28 V.S.C.. 782(ordercompellingtestimony and document production "for use in a proceeding in a foreign or international tribunal"); 35 V.S.C. 24 (subpoena administrativeclaims before Patentand Trademark Office); 4S V.S.C. lS7(h) for (subpoena arbitrationproceedings for underRailway Labor Act). None of theseprovisions involves proceedings pending in federal courts. Indeed,two of theminvolve controversies arebeyondthe cognizance the federalcourtsaltogether.2 V.S.C. that of 388 authorizesdistrict courts to issuesubpoenas connectionwith election contestsbefore the in Houseof Representatives eventhoughthe ConstitutionmakeseachHousethe exclusive"Judgeof the Elections, Returns and Qualifications of its own Members" (Art. 1,§ S. ct. 1). and 28 V.S.C. 782 authorizesdistrict courtsto compeltestimonyfor usein "foreign and internationaltribunals" even though the controversies heard by such tribunals will characteristically arise under foreign rather than federal law and will ordinarily be outside the scope of Article ill. Moreover, 28 V.S.C. 1782 authorizes a district court to compel the production of evidence even when no proceeding is pending in the foreign tribunal itself. See,e.g.,In re Letter Rogatory,42 F.3d 308, 310 (5th Cir. 1995). Verizon offers no convincingexplanationfor how Section512(h) canrun afoul of Article ill while theseprovisionsconcededly passconstitutionalmuster. Verizon asserts noneof these that 2. provisions "placesthe clerk and the court in the role of the initial investigatorof factsthat mayor may not be useful" in private civil claims. Verizon Br. 19. But it is difficult to seehow a clerk who issuesa subpoenaunder Section 512(h) is any more an "initial investigator of facts" than a clerk who issues depositionsubpoena a relatingto a patentproceeding a labor arbitration. Theonly obvious or difference is that the subjectmatter of a subpoena under Section512(h) is far narrowerthan the open-ended scopeof subpoenas issuedunderthe provisionscited above- a distinction makes that the clerk's role underSection512(h) less,not more, "investigative." For present purposes,perhaps the most significant of the provisions cited by the district court is Rule 27, which authorizesdistrict courts to issueorderscompelling depositions"to perpetuate testimony regardingany matter that may be cognizablein any court of the United State!'" Like Section512(h). Rule 27 pennits a federalcourt to compel the giving of testimonywith respectto controversies that "may be cognizable" in federal court but that are not the subject of pending federal that litigation Verizon concedes Rule 27 doesnot offend Article ill, but insiststhat thereare four "fundamentaldistinctions. . . of constitutionaldimension"betweenRule 27 and Section512(h). nor Verizon Dr. 20 In fact, however,the distinctionsoffered by Verizon areneither fundamental constitutionalin dimension Verizon first notes that Rule 27 requires the person seeking to conduct the deposition to aver that he "expectsto be a party to an action cognizablein a court of the United States"in the future. But as the district court pointed out, a bare avennentunder Rule 27(a) that the party expectsto engagein future litigation offers no assurance a cognizablesuit will actuallybe commenced. that And even if litigation does subsequently occur. there is no assurance that the court will ever adjudicatethe merits of the controversy. It is routine for suits to be terminatedprior to judgment, 13- whetherthrough settlementor otherwise. As a result, a federalcourt that is called on to order a depositionunderRule 27 maywell neveradjudicate underlyingcontroversy the evenif a complaint is filed Yet the real and substantialpossibility that the controversywill be resolvedwithout any judicial determinationof the parties' rights and liabilities in no way divests the court of the constitutionalpowerto issuecompulsory process underRule27. For thesame reason, possibility the that the genuinecontroversy betweenthecopyrightownerandthe allegedinfringer mayberesolved without further litigation doesnot affect the constitutionalpower of the court to issuea subpoena under Section512(h). It is alsonoteworthythat the federalpredecessors Rule 27, which go back to the founding to of the Republic,requiredno avennentregardingthe likelihood of future litigation. Rule 27 hasits origins in the Judiciary Act of 1789,which provided that a federalcircuit court "may, accordingto the usages chancery[,]direct" thetaking of depositions perpetuamrei memoriam"if theyrelate in in to mattersthat maybe cognizablein anycourt of the United States." 1 Stat.88,90; Rev. Stat.§ 866 (same). In contrastto Rule 27, the Judiciary Act of 1789 did not require the party seekingthe testimonyto averthat he expected be party to a future suit cognizablein federalcourt to The First Congress thusdoesnot appear haveunderstood to Article ill to conditiontheissuance compulsory of processon the probability of future litigation - and the First Congress's understanding special has weight in resolvingconstitutionalquestions. SeeMarsh v. Chambers, 463 U.S. 783,790 (1983). Verizon's secondsuggested distinction is that Rule 27 is designedto preserveknown testimonyfrom loss,while there is no risk of loss in this casebecause Verizon preserves relevant infonnation regardingits customers' identities Verizon Br. 20, That is indeeda distinction - but Verizon offers no explanation of why it is significant for Article ill purposes, and we are aware of 4. none. In practice,moreover,Section512(h) often will perform precisely the samepreservation function asdoesRule 27. SeeSecondOp. at 14 [JA~. Verizon's third purported distinction is that Rule 27 provides for adversarial proceedings before any judicial process issues,while subpoenasare issued under Section 512(h) on an ex parte basis. But nothing in Article ill confinesthe exerciseof judicial power to proceedings conducted on an adversarialrather than exparte basis. For example,federal courts have the unquestioned authority to issuetemporaryrestrainingorders- a vastlymoreserious andinvasiveexercise of judicial power than the issuance a subpoena on anexparte basis. See of Fed.R. Civ. P. 6S(b). The e.\" parte character a proceeding of may (or may not) implicatethe demands the Due Process of Clause,but it hasno bearingon the operationof Article ill. Finally, petitioner arguesthat Rule 27's roots "predatethe Constitution,"while there is no comparable historical precedent the issuance a third-party subpoena is "unconnected for of that to anycaseor controversy."V enzonBr. 21. But aswe haveshownabove,therequirements Section of 512(h) ensurethat subpoenas issuedto serviceprovidersare "connected"to a caseor controversy. Thus, in the end,there are no constitutionallysignificant differencesbetweenSection512(h) and the Rule 27 If the latter provision is constitutional,as Verizon concedes, fonner provision is constitutionalaswell. 3. In addition to arguing that Section512(h} authorizesthe issuance subpoenas the of in absence any Article ill controversy,Verizon arguesthat Section512(h) violates Article ill by of convertingthe federalcourtsinto "free floating investigativebodies." Verizon Br. 12. According to Verizon, Section512(h) assigns court clerks "purely investigatory"dutiesthat are"non-judicial" or "extra-judicial" in nature. Id. at 17, 18 Verizon seeksto convey the image of federal clerks .15- roamingthe countrysideat will, issuingwrits hither and yon to "investigate"potentialmalfeasance underthe copyright laws That imageis a striking one,but it hasnothing to do with the actualfunction perfonnedby clerksunderSection512(h). Whena clerk issues subpoena a underSection512(h),heis perfonning preciselythe kind of routine function that he perfOrn1S wheneverhe is called on to issuea gardenvariety subpoena ducestecumunderRule 45, Thereis simply nothing "extra-judicial" aboutthat function. Nor doesSection512(h) somehowtransformthe clerk, andthroughhim the court, into a "free floating investigative body." The initiative for the issuanceof a subpoenaunder Section 512(h) restsexclusivelywith the copyright owner, not the clerk, and the copyrightowner must be able to identify specific past acts of copyright infringement before Section 512(h) can be invoked. Moreover,when the copyright owner properly invokes Section512(h), the clerk hasno power to conductan open-ended inquiry into potentialcopyrightinfringement. Instead, subjectmatterof the a subpoena underSection512(h)is limited to a single,narrowly definedsubject:the identity of the allegedinfringer. Whena clerk issuessucha subpoena, function doesnot differ in anymaterial his respectfrom the functionsroutinely - andconstitutionally- perfonnedby him underprovisionslike Rule 45 B. An Article III Controvers)' Exists Between the Copyright Owner and the Online Service Pro\ider As the foregoing discussiondemonstrates, subpoena the mechanismcreatedby Section 512(h) satisfies the requirementsof Article ill becauseit is tied to the existenceof an actual contro\'ersybetweenthe copyright owner and the allegedinfringer. In addition, SectionSI2(h) is tetheredto anotherArticle ill controversy- the controversybetweenthe copyright owner and the -16- online serviceprovider over disclosureof the identity of the infringing subscriber.Section512(h) subjectsonline subscribers an obligation under federallaw to disclosespecifiedinfom1ationto to copyright owners and establishesa mechanismfor copyright owners to enforcethat disclosure obligation in federalcourt. The adversitybetweenthe copyright owner and the online subscriber regardingdisclosureof the subscriber's identity constitutesan independent Article ill controversy sufficient to sustainresortto the subpoena power underSection512(h). There is nothing either novel or constitutionally doubtful about an Act of Congressthat requires a private party to disclose specified infonIlation and penIlits the beneficiary of the disclosure obligation to compel disclosurein federalcourt. For example,the EmployeeRetirementIncome SecurityAct (ERISA) obligates pension plan administrators makespecifiedinformationavailable to to plan beneficiaries, an administratorwho fails to discloserequested and information is subjectto suit by the beneficiaryin federalcourt. 29 V.S.C. 1132(a)(1)(A),(c)(l). The Emergency Planning and Community Right-to-Know Act, 42 V.S.C. 11001et seq., requiresowners and opetatorsof industrial facilities to disclose specified infonnation about hazardouschemicalsused in those facilities, and any personmay bring a civil suit in federalcourt againstan owner or operatorwho fails to makethe requireddisclosures.42 V.S.C. 11021(a),11046(a)(I),(b). Similarly, Title X of the Toxic Substances Control Act obligatessellersof residentialpropertyto disclosethe presence of lead-based paint to purchasers, the failure to comply with that disclosureobligation subjects and the seller to, inter alia, a private suit to enforcethe disclosureobligation. [d. § 4582d(a)(I)(B) (disclosure);id. §§ 2619.2689.4582d(d}(5}(enforcement). The only distinction betweenTitle n of the DMCA andthesestatutes that Section512(h) is providesfor the copyrightownerto invoke the court'sassistance applying for a subpoena by rather -17- than filing a complaint. But that is a distinction without a difference for Article ill purposes,for Congress the authority to "provid[e] remediesand defin[e] procedurein relation to casesand has controversies in the constitutional sense,"and in "[ e]xercising this control of practice and procedure the Congressis not confined to traditional fonns or traditional remedies. Aetna Life Ins. Co. of II Hartford v. Haworth, 300 U.S. 227, 240 (1937) (internal quotationmarksomitted). Although the district court found it unnecessary decidewhetherthe controversy to between RIAA and Verizon provided an alternativebasis for meeting the requirementsof Article ill, it suggested that an actual controversymight not be presentin somecasesbecause "the copyright owner neednot assert that a disagreement over whetherto provide the allegedinfringer'snamehas emerged will emerge."Second at 19n.12 [IA or Op. -3. In this case.however.asthedistrict court itself acknowledged, "RIM did makea pre-subpoena requestfor thenameandVerizon did object." Id. Thus, assuming arguendothat a refusalto disclosethe infonnation must occur beforeSection 512(h)may be invoked,that requirementis met here. II. Section 512(h) DoesNot Violate The First Amendment A. Section 512(h) Is Not Unconstitutionally Overbroad The subpoenas issuein this caseinvolve individuals who are allegedto haveengaged at in wholesaleviolations of federalcopyright law by illegally offering hundredsof copyrightedsound recordingsfor downloadingover the Internet. It is undisputed that the First Amendmentoffers no protectionfor copyright infringement. Harper & Row Publishers,Inc. v. Nation Enterprises,471 U.S. 539, 568 (1985);Zacchini v. Scripps-Howard,433 U.S. 562, 574-78(1977); seeVerizon Br. 33. Moreover,the subpoenas imposeno legaldisability whatsoever the subscribers on themselves; only a separate for copyrightinfringementcando that. Accordingly, Verizon doesnot contend suit -18- that thesesubpoenas violate the First Amendmentrights of the subscribers whoseidentitiesare at issuehere,much lessVerizon'sown First Amendmentrights. Instead,Verizon asserts Section that 512(h) is unconstitutionallyoverbroadand thereforemay not be applied even where, as here, its applicationwould indisputablybe constitutional. The overbreadth doctrine"is, manifestly,strongmedicine,"to be employed"sparinglyand only asa last resort." Broadrick v. Oklahoma,413 U.S. 601, 613 (1973). "Rarely, if ever,will an overbreadth challenge succeedagainst a law or regulation that is not specifically addressedto speech or to conductnecessarily associated with speech. . .." Virginia v. Hicks, No. 02-371(U.S. June 16,2003),slip op. 10;Broadrick, 413U.S. at612-13. Evenwhena statuteis "specificallyaddressed to speech"or expressiveconduct,the party seekingto inva1idatethe law on overbreadth grounds must "sho\\'Othat [the] law punishesa 'substantial' amountof protectedfree speech,""not only in an absolutesense, alsorelative to the scopeof the law'splainly legitimateapplications* * * ." but Hicks, slip op. 5, 6 (quoting Broadrick, 413 U.S. at 615). Moreover, mere speculation about potentially unconstitutional applications will not suffice. Instead, " [t]be overbreadth claimant bears the burden of demonstrating,from the text of [the law] and from actua] fact, that substantial overbreadth exists." Id. at 8 (internal quotationmarksomitted; bracketed text addedby Court). Section512(h) is manifestly constitutionalunder thesestandards.As a thresholdmatter, Section512(h) "is not specifically addressed speechor to conduct necessarilyassociated to with speech* . ." Hicks, slip op. 10. The conductat which Section512(h)is directedis the unlawful * reproductionand distribution of copyrightedworks over the Internet. When a subscriberillegally distributescomputerfiles containingsomeone else's perfonnance copyrightedmusic,he himself of -19- is not engagingin expression any sort. Because conductat which Section512(h) is directed of the doesnot involve expressionat all, the overbreadth doctrinesimply doesnot comeinto play. Moreover,evenif the transmission illegally copiedsoundrecordingscould somehowbe of regardedas expressive conduct, Verizon hasutterly failed to carry its "burden of demonstrating, from the text of [the law] and from actual fact, that substantialoverbreadthexists." Hicks, slip op. 8. Section512(h) ist on its facet directedexclusively at copyright infringement - an activity that is wholly unprotectedby the First Amendment The statutecannotlawfully be invoked unlessthe requesteridentifies the work claimed to have been infringed and the material claimed to be infringing, has a good faith belief that the useof the material in the mannercomplainedof is not authorized,andmakesa sworn declarationthat the subpoena being soughtto obtain the identity is of an allegedinfringer and that such infonnation will only be used for the purposeof protecting rights under the Copyright Act. 17 V.S.C. 512(c)(3)(A), 512(h)(2)(C) Given these statutory prerequisites, there is nothing on the face of the statute to suggest that persons who are engagedin protected expression, rather than copyright infringement, will routinely have their identities disclosed pursuant to subpoenasissued under Section 512(h). Nor has Verizon has offered any evidence that Section 512(h) is in fact being used or abusedin a significant number of casesto obtain information that falls outside the intended scopeof the provision. Instead, it offers a single factual example that does not involve the use of Section 5 12(h) at all (Verizon Br. 38) and speculates Section512(h)could be misused "cyberstalkers" at 39). In'elevantanecdotes that by (id. and unsupported speculationfall far short of" demonstrating, from the text of [the law] and from -20- actualfact,that substantial overbreadth exists." Hicks, slip op. 8. Verizon'soverbreadth claim may thereforebe rejectedout ofhand.3 B. Verizon's Objections to Section512(h)'sProcedural RequirementsAdd Nothing To Its Overbreadth Claim Verizon arguesthat personswho engagein expressionover the Internet have a qualified First Amendment interest in anonymity and that Section 5 12(h) lacks the procedural safeguardsrequired to protect that interest. Verizon'sproceduralobjectionto Section512(h) is without merit for two basic reasons:the First Amendment does not impose any procedural preconditions on the disclosure of subscriberidentities under Section 512(h), and evenif it did, Section512(h)'sown procedures would be sufficient to passconstitutionalmuster. With respect to the first of thesepoints, Verizon's procedural claim is predicated on Supreme Court decisionsinvolving statutes that are specificallyintendedto suppress speech.For example, in Blount v. Rizzi, 400 U.S. 410 (1971), the caseon which Verizon placesprincipal reliance,the SupremeCourt was presentedwith statutesthat permitted the PostmasterGeneral to exclude allegedlyobscene materialsfrom the public mail. The Supreme Court held that the statutes, an as "administrative censorship scheme,' were unconstitutional because they lacked procedural safeguards minimize the risk that non-obscene to materialswould be improperly suppressed. U.S. at417. In contrast to the statutesat issue in Hicks: and other casesrelied on byVerizon, Section 512(h) imposesno restrainton speech is not intended~oprohibit expression any way. and in 3 Verizonsuggests it is "not required providedocumentary that to proof of mistakes or abuse." Verizon Hr. 38. The SupremeCourt'sdecisionin Hicks, which requiresthe complainant to demonstrate overbreadth"from the text of the [law] and from actual fact," disposesof that suggestion.Hicks, slip op. 8. -21- Second at 28 [JA ~ Op. Nothing in Blount suggests that such a law must have particular proceduralsafeguards orderto passmusterunderthe First Amendment. in In any event,as the district court pointed out, Section512(h) possesses ampleprocedural safeguards minimize the risk that personswho areengaged protectedspeech to in over the Internet will havetheir identitiesimproperlydisclosed. As explainedabove,a party requesting subpoena a underSection512(h)must identify the infringing material,asserta good faith belieftbat the useof the material unauthorized, and swearunderoath that the infonnation will only be usedto protect that the material or rights under the Copyright Act. Any personwho knowingly misrepresents activity underlying a subpoena infringing is liable for damages, is costs,and attorney'sfees. 17 V.S.C.512(f). And an online serviceprovider that believesa subpoena unfoundedmay make a is timely objection to complianceand, by so doing, shift to the requesterthe burdenof obtaining a judicial order compelling disclosureof the information. As the district court pointed out, these safeguards "are preciselythe type of proceduralrequirements other courts haveimposed"in noncop}Tightcases"to compela serviceprovider to reveal the identity of anonymous Internetusers." nothing more here.4 SecondOp. at 31 n.23 The First Amendmentdemands 4 Verizon appears conceiveof its proceduralargument analternativeto its overbreadth to as claim. In fact, however, the procedural objections raised by Verizon are - at most - simply another basis for asserting that Section 512(h) is impermissibly overbroad. To invalidate Section 512(h) on its face, Verizon would have to show not only that there are individual casesin which the claimed lack of procedural safeguards will trench on protected First Amendment interests, but that the volume of such casesis substantial in an absolute senseand "relative to the scopeof the law's plainly legitimate applications." Hicks, slip op. 6. Verizon has made no effort to make such a showing. -22- CONCLUSION For the foregoingreasons, ordersof the district court shouldbe affinned insofar asthey the sustainthe constitutionalityof 17 V.S.C. 512(h). Respectfullysubmitted, ROBERTD. McCALLUM AssistantAttorney General ROSCOE C. HOWARD, Jr. United States Attorney DOUGLAS N. LETTER~ ~ 'f\ ;"1"\ SCOTT R. McINTOSHS7Jl.'4 ~1;;.~} " Attorneys Appellate Staff, Civil Division Departmentof Justice 601D Street NH-: Room 9550 Washington 20530-0001 DC 202-514-4052 June 20, 2003 -23- CERTIFICATE OF COMPLIANCE This brief complieswith the type-volumelimitation of Fed.R. App. P. 32(a)(7)(B)and this Court's order of April 29, 2003, It contains 6994 words, excluding the parts of the brief exempted Fed.R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(2). by 2. This briefcomplieswith thetypeface requirements Fed.R. App.P. 32(a)(5)andCircuit of Rule 32(a)(I) and the type style requirements Fed. R. App. P. 32(a)(6). It hasbeenpreparedin of a proportionally spacedtypeface using WordPerfect version 9.0 in 12-point Times New Roman type. I "~. ~ "--~' ~I-~ "'\i J..'\..~\ Scott R. Mcintosh Counsel for the United States ~