512(h) DMCA Subpoena – Legislative History in Support of Statutory Construction
The other day I briefly
overviewed the trials and tribulations related to seeking a § 512(h) DMCA
subpoena. Courts, including with respect
to my own request, routinely interject legal precedent related to Rule 45 discovery
request to that of a subpoena request pursuant to § 512(h). This then results in a misconstruction of §
512(h), and leaves copyright owners with poor clarity with respect to the overall
subpoena process.
To clarify the meaning of the subsection, a brief look at
the legislative history may be useful.
The DMCA was enacted into law October 28, 1998. H.R. 2281 in its final form was the bill that
ultimately became the DMCA. According to
congressional records, during its history H.R. 2281 had approximately six (6)
versions – the first version (“v1”) being introduced into the House on July 29,
1997. Of note, v1 completely lacked any
language related to a ‘DMCA subpoena’ or infringer identification process, and
the like. Version 2, as reported May 22,
1998 (“v2”) similarly lacked any language related to a ‘DMCA subpoena’. See H.R. Rep. No.
105-551, pt. 1 (1998)(accompanying H.R. 2281).
Meanwhile related bill S. 2037 was making its way through
the Senate. As reported May 11, 1998, S.
2037 contained the following language for New Section 512:
(g) Identification
of Direct Infringer.--The copyright owner or a
person authorized to
act on the owner's behalf may request an order for
release of
identification of an alleged infringer by filing--
(1) a copy of a notification
described in subsection
(c)(3)(A), including a proposed order,
and
(2) a sworn declaration that the
purpose of the order is to
obtain the identity of an alleged
infringer and that such
information will only be used for the
purpose of this title,
with the clerk of any United States
district court.
The order shall
authorize and order the service provider receiving the
notification to
disclose expeditiously to the copyright owner or person
authorized by the
copyright owner information sufficient to identify
the alleged direct
infringer of the material described in the
notification to the
extent such information is available to the service
provider. The order
shall be expeditiously issued if the accompanying
notification
satisfies the provisions of subsection (c)(3)(A) and the
accompanying
declaration is properly executed. Upon receipt of the
order, either
accompanying or subsequent to the receipt of a
notification
described in subsection (c)(3)(A), a service provider
shall expeditiously
give to the copyright owner or person authorized by
the copyright owner
the information required by the order,
notwithstanding any
other provision of law and regardless of whether
the service provider
responds to the notification.
S. Rep. No. 105-190, at 83 (1998)(accompanying S.
2037).
The Senate report included the following for context related
to the subsection:
Id. at 51.
As reported July 22, 1998, v3 of
H.R. 2281 adopted language similar to that of S. 2037. See
H.R. Rep. No. 105-551, pt. 2, at 15-16 (1998)(accompanying H.R. 2281). With a number of proposed revisions,
including new language directed to an ‘infringer identification’ process, v3
was reported as appropriately balancing interests of related stakeholders. Id.
at 21.
Id. at 60-61.
Through additional revision, “New
Section 512 (g)” of v3 ultimately morphed into “(g) Subpoena To Identify
Infringer”, as H.R. 2281 was engrossed in the House, August 4, 1998 (“v4”). Digital
Millennium Copyright Act: Congressional Record, 144:108 (August 4, 1998) p.
H7081.
v4 provided the following:
(1) Request.--A copyright owner or a person authorized
to
act on
the owner's behalf may request the clerk of any United
States
district court to issue a subpoena to a service provider
for
identification of an alleged infringer in accordance with
this
subsection.
(2) Contents of request.--The request may be made by
filing
with the clerk--
(A) a copy of a notification described in
subsection (c)([3])(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the
purpose for which the subpoena is sought is to obtain
the identity of an alleged infringer and that such
information will only be used for the purpose of
protecting rights under this title.
(3) Contents of subpoena.--The subpoena shall
authorize
and
order the service provider receiving the notification and
the
subpoena to expeditiously disclose to the copyright owner
or
person authorized by the copyright owner information
sufficient to identify the alleged infringer of the material
described in the notification to the extent such information is
available to the service provider.
(4) Basis for granting subpoena.-- If the notification
filed
satisfies the provisions of subsection (c)([3])(A), the
proposed
subpoena is in proper form, and the accompanying
declaration is properly executed, the clerk shall expeditiously
issue
and sign the proposed subpoena and return it to the
requester for delivery to the service provider.
(5) Actions of service provider receiving subpoena.--
Upon
receipt
of the issued subpoena, either accompanying or
subsequent to the receipt of a notification described in
subsection (c)([3])(A), the service provider shall expeditiously
disclose
to the copyright owner or person authorized by the
copyright owner the information required by the subpoena,
notwithstanding any other provision of law and regardless of
whether
the service provider responds to the notification.
(6) Rules applicable to subpoena.-- Unless otherwise
provided
by this section or by applicable rules of the court,
the
procedure for issuance and delivery of the subpoena, and
the
remedies for noncompliance with the subpoena, shall be
governed
to the greatest extent practicable by those provisions
of the
Federal Rules of Civil Procedure governing the issuance,
service,
and enforcement of a subpoena duces tecum.
This language from v4 is codified
in § 512(h).
What is clear from the
legislative history of the DMCA through enactment, as it pertains to § 512(h),
is the following:
1) § 512(h), as part of H.R. 2281
in its final version, and in accordance with the Constitution of the United
States, was passed by the House, passed by the Senate, and signed into law by
the President.
2) § 512(h) was provided as part
of balance and compromise (allegedly) between service providers and content
owners in support of the DMCA’s ultimate function: growing the internet. Arguably, without § 512(h), there is no § 512(c)
– without § 512 (c), there is no Facebook, Pinterest, Twitter, etc. (at least
not in their current form).
3) the plain language of § 512(h),
congressional intent, and legislative history unambiguously and clearly
indicate any copyright owner can submit required documents to the clerk of any Federal Court to obtain an Order for Identification (or as now known,
a ‘Subpoena to Identify Infringer’).
This process was meant to be a
ministerial function performed quickly by the clerk (emphasis).
4) In opposite to a Rule 45
discovery request in a pending proceeding, there is nothing in § 512(h) that
infers or otherwise invokes the Article III power of a court, let alone the
need for the clerk to asses aspects related to venue or jurisdiction in a DMCA subpoena. The simplicity in the process is evidenced by
the evolution of the subsection – initially worded as an ‘Order for
Identification’, but later amended to ‘Subpoena’ – putting it well within the grasp
of the clerk, not a judge.
Of course, while legislative history
can serve to inform the Court's reading of an otherwise ambiguous text, it
cannot lead the Court to contradict the legislation itself. See
Ratzlaf v. United States, 510 U.S.
135, 147-48, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994) (“We do not resort to
legislative history to cloud a statutory text that is clear”).
Unfortunately when a court requires a
requestor to evidence venue and jurisdiction they do just that.
Now that the legislative history
is presented for context, a construction will follow.
