I thought the district court's opinion in Verizon v. RIAA that "the language and structure of the statute, as confirmed by the purpose and history of the legislation" dictated that Verizon had to respond to the subpoena was powerful. It did seem to me that the content industry and ISPs had made an arrangement in the DMCA to get particular pieces of personal information to the claimant quickly, and that § 512(h) on its face authorized the issuance of a ministerial subpoena to an "‘[internet] service provider" without regard to whether the ISP's function -- that is, whether or not it was actually storing the material. I guess I was wrong.

The DC Circuit ruled today that the notice and takedown provisions of the DMCA don't apply to the conduit functions of an ISP, and so therefore if Verizon isn't storing the material on its server it doesn't have to respond to a 512(h) subpoena. Verizon just can't "take down" something it isn't storing. RIAA argued that Verizon could just cut off the subscriber's access to the internet, but the court made short work of that argument -- that's a different remedy, the court pointed out.

The court dealt with the words, structure, history, and purpose of the statute very carefully. (Note for flag litigation: "The plight of copyright holders must be addressed in the first instance by the Congress; only the '‘Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.' See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).") I'm persuaded.

But what I'm most moved by this evening is the energy that Verizon put into this case. I've heard Verizon policy people talk about this case, and I know they cared about it a great deal. Other ISPs just decided to respond to the subpoenas, but Verizon refused. Some have suggested that V did this because they wanted more file traders to subscribe -- but V points out that because people pay a flat fee it doesn't matter what they use their connection for. Although you could still be cynical, saying that V just wants to be popular and get more customers, what's wrong with that? They must have believed in the privacy of their subscribers to fight this hard. It's a clear, hard-fought, tremendous victory for Verizon, and it's a rare thing for a company to take on a matter of principle like this. I'm very impressed, and I'm glad I was wrong.