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).
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
(2) Contents of request.--The request may be made by
filing with the clerk--
(A) a copy of a notification described in
(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)()(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)()(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.