257 F.Supp.2d 244
District of Columbia.
In re: VERIZON INTERNET SERVICES, INC., Subpoena Enforcement Matter,
Recording Industry Association of America, Plaintiff,
v.
Verizon Internet Services, Defendant.
No. CIV.A. 03-MS-0040 JDB.
April 24, 2003.
Internet service provider brought action challenging the subpoena power authorized under Digital Millennium Copyright Act (DMCA) on behalf of its subscribers. Upon provider's motion to quash the subpoena served on it, and motion for stay pending appeal of adverse rulings, the District Court, Bates, J., held that: (1) subpoena power authorized under DMCA did not violate the case or controversy requirement of Article III; (2) subpoena power authorized under DMCA provided sufficient safeguards and judicial supervision to protect Internet users' First Amendment rights; and (3) Internet service provider was not entitled to stay pending appeal.
Motions denied.
*246 Donald B. Verrilli, Jr., Thomas Perrelli, Jenner & Block, Recording Industry Association of America, Jonathan Whitehead, Recording Industry, Association of America, Washington, for Plaintiff.
Andrew McBride, Bruce Joseph, Dineen Wasylik, Wiley Rein & Fielding, Washington, for Defendant.
Kathryn Schaefer Zecca, Robbins, Russell, Englert, Orseck & Untereiner, U.S. Internet Industry Association, Megan Gray, Gray Matters, Paul Benedict Gaffney, Edward Bennett Williams Building, Williams & Connolly, Joe Caldwell, Jr., Baker Botts, LLP, The Warner Building, Electronic Privacy Information Center, Washington, for Amici.
John Zacharia, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Intervenor.
MEMORANDUM OPINION
BATES, District Judge.
Before the Court is the motion of Verizon Internet Services ("Verizon") to quash the February 4, 2003 subpoena served on it by the Recording Industry Association of America ("RIAA") pursuant to the Digital Millennium Copyright Act of 1998 ("DMCA"), 17 U.S.C. § 512. On behalf of copyright owners, RIAA seeks the identity of an anonymous user of the conduit functions of Verizon's Internet service who is alleged to have infringed copyrights by offering hundreds of songs for downloading over the Internet. [FN1] In an earlier action, this Court rejected Verizon's statutory challenges to a similar subpoena, holding that Verizon's conduit functions were within the scope of the subpoena authority of § 512(h) of the DMCA. See In re: Verizon Internet Services, Inc., Subpeona Enforcement Matter, 240 F.Supp.2d 24 (D.D.C.2003). Verizon now claims that § 512(h) violates *247 Article III of the Constitution because it authorizes federal courts to issue binding process in the absence of a pending case or controversy, and that § 512(h) violates the First Amendment rights of Internet users. If the merits of Verizon's constitutional challenges are rejected by this Court, Verizon seeks a stay pending appeal of that ruling, and of the earlier statutory ruling by this Court.
FN1. RIAA is the industry trade association for sound and music recordings, and is authorized to enforce the copyrights of its members, who create and distribute most of the music sold in the United States.
Having considered the parties' several memoranda, three hearings, the brief of the United States as intervenor defending the constitutionality of § 512(h), a number of amicus briefs, and the entire record herein, the Court denies Verizon's motion to quash RIAA's February 4, 2003 subpoena. The subpoena power authorized under § 512(h) of the DMCA does not violate the case or controversy requirement of Article III and does not abridge the First Amendment rights of Internet users. Moreover, because Verizon is unable to show irreparable harm or that it is likely to succeed on an appeal of its constitutional or statutory challenges, the Court also denies Verizon's request for a stay pending appeal. [FN2]
FN2. A temporary stay of 14 days will be entered to enable Verizon to seek a stay in the Court of Appeals.
I. PROCEDURAL HISTORY
This case has followed a somewhat circuitous procedural path. To begin with, this is the second subpoena RIAA has served on Verizon pursuant to the DMCA seeking the identity of an anonymous Internet user alleged to have infringed protected copyrights. On July 24, 2002, RIAA served its first subpoena to obtain the identity of a Verizon subscriber alleged to have made more than 600 copyrighted songs available for downloading over the Internet through peer-to- peer file transfer software provided by KaZaA. Verizon claimed that because RIAA's subpoena related to material transmitted over Verizon's network--rather than stored on it--it fell outside the scope of the subpoena power authorized by § 512(h). Verizon read § 512(h) as applying only in those situations where the infringing material is physically stored on the service provider's network. RIAA contended that the subpoena authority under § 512(h) applied to all service providers under the DMCA, including Verizon. The parties framed the issue as one of statutory construction, although Verizon noted that if § 512(h)'s subpoena authority were construed as applying to all service providers, the statute "raises substantial questions" under Article III and the First Amendment.
The Court construed the subpoena power in § 512(h) as applying to all service providers under the DMCA, and granted RIAA's motion to enforce the subpoena. See In re: Verizon Internet Services, Inc., 240 F.Supp.2d 24 (hereinafter "First Subpoena Decision "). The Court did not reach the constitutional arguments, instead deciding the question strictly on statutory grounds by construing the DMCA's language, structure, purpose, and legislative history. As a result, the Court found the subpoena valid and ordered Verizon expeditiously to provide RIAA with the identity of the subscriber alleged to be infringing copyrighted songs.
Verizon appealed that decision, and moved to stay the Court's order pending resolution of its appeal. [FN3] In its motion for a stay, Verizon asserted constitutional challenges as the primary basis for a stay, claiming that the Court's construction of § 512(h) raised serious questions regarding the First Amendment rights of Internet *248 users and presented a critical issue whether a subpoena could issue under Article III without an actual "case or controversy" pending in federal court. RIAA contended that because Verizon had not raised these issues earlier, it had waived them on appeal.
FN3. Pursuant to Fed. R.App. P. 8(a), this Court ordered a temporary stay to allow the issues to be fully briefed and decided.
The Court held a hearing on Verizon's stay motion. Meanwhile, however, RIAA served a second subpoena on Verizon on February 4, 2003. Shortly after the hearing on its motion to stay the first subpoena, Verizon moved to quash RIAA's second subpoena, directly presenting the constitutional challenges. [FN4] In an effort to resolve both the motion to stay on the first subpoena and the constitutional challenges to the second subpoena, the Court ordered another round of expedited briefing. Verizon proposed notifying the two subscribers whose conduct is at issue of the commencement and status of these actions, and the nature of RIAA's allegations of copyright infringement, which was then done at the Court's urging. A third hearing to address Verizon's constitutional challenges to § 512(h) was held on April 1, 2003. Subsequently, the United States has moved, and been permitted, to intervene and has submitted a brief defending the constitutionality of the DMCA.
FN4. Because the second subpoena involved the same parties as the first subpoena and related legal issues, Verizon's motion to quash was assigned to this judge with the agreement of both Verizon and RIAA.
The gravamen of Verizon's statutory challenge to the first subpoena was that the subpoena power under § 512(h) should be construed as limited to situations within § 512(c) where allegedly infringing material is stored on the Internet service provider's network. This Court firmly rejected that view in First Subpoena Decision, 240 F.Supp.2d 24. The constitutional challenges now asserted by Verizon in response to the second RIAA subpoena are, although substantive and in apparent good faith, somewhat in tension with the earlier statutory challenge. If Verizon were correct that § 512(h) should be construed to permit subpoenas only for subsection (c) service providers--which it is not--Verizon's Article III challenge would nonetheless retain its full force because such subpoenas would still, under Verizon's view, be unconnected to a pending case or controversy, and the asserted First Amendment concerns would also remain, albeit focused on the more limited subset of subscribers of subsection (c) service providers. Given this tension, one might ask why the constitutional challenges were not more fully pressed by Verizon in the first subpoena litigation. Be that as it may, those issues are now squarely before the Court in this case. [FN5]
FN5. Because the First Subpoena Decision provided an extensive overview of § 512 of the DMCA, the Court will not repeat that explanation here, and instead incorporates that background discussion by reference.
II. SECTION 512(h) DOES NOT VIOLATE ARTICLE III
[1] Verizon contends that § 512(h) violates Article III of the Constitution because it authorizes federal courts to issue subpoenas in the absence of a pending case or controversy. Citing cases from the eighteenth and nineteenth centuries, Verizon argues that federal judges can neither exercise authority outside the context of an actual case or controversy nor undertake non-judicial functions. See Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792); United States v. Ferreira, 54 U.S. 40, 13 How. 40, 14 L.Ed. 40 (1851). Relying on *249United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988), and Houston Business Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208 (D.C.Cir.1996), Verizon also argues more specifically that "the power to issue subpoenas exists only in the context of a case that is properly pending before a federal court." Verizon's Br. Supp. Mot. Quash Feb. 4, 2003 Subpoena at 12. [FN6]
FN6. To be clear, Verizon does not contend that the instant proceeding to quash a subpoena is not a case or controversy; rather, Verizon contends that the issuance of the subpoena under § 512(h) does not constitute, and was not conducted in the context of, a case or controversy. It is well-established that courts may hear an action to enforce or quash a subpoena even where the subpoena was not issued in connection with a case pending in the federal courts. See ICC v. Brimson, 154 U.S. 447, 490, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894) (courts may aid inquiries before the ICC); United States v. Hill, 694 F.2d 258, 269 (D.C.Cir.1982) (court has jurisdiction to enforce investigatory subpoenas issued by the Department of Energy).
Verizon's arguments, although intriguing, are ultimately not persuasive. No doubt the justices of the Supreme Court have indicated that the federal courts are properly confined to the exercise of "judicial power." See Hayburn's Case, 2 U.S. at 410 n. *, 2 Dall. 409; Ferreira, 54 U.S. at 48, 13 How. 40. [FN7] And, more recently, the Supreme Court has noted that "[f]ederal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends." United States v. Morton Salt Co., 338 U.S. 632, 641-642, 70 S.Ct. 357, 94 L.Ed. 401 (1950). But upon examination, it is clear that the § 512(h) subpoena authorization does not represent an innovation that is inconsistent with the limited role of the judiciary as it has traditionally been understood in our constitutional regime.
FN7. The Supreme Court itself did not reach the constitutional issue in Hayburn's Case, but the opinions of several Circuit Courts (on which certain Justices of the Supreme Court sat) "were reported in the margins of the Court's decision in that case, and have since been taken to reflect a proper understanding of the role of the Judiciary under the Constitution." Morrison v. Olson, 487 U.S. 654, 678 n. 15, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)
As an initial matter, the clerk's issuance of a § 512(h) subpoena does not involve either the exercise of judicial power or the exercise by federal judges of Article I or Article II-type investigatory power. Indeed, the issuance of a § 512(h) subpoena cannot properly be considered an act of "the court." Subsection (h)(4) provides that "[i]f the notification [of claimed infringement] 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." 17 U.S.C. § 512(h)(4) (emphasis added). Under this subsection, the clerk exercises no discretion; if the requirements are met, the subpoena must be issued. The clerk, in other words, executes a quintessentially ministerial duty. See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498, 18 L.Ed. 437 (1866) ("A ministerial duty ... is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."); Nealon v. Davis, 18 F.2d 175, 176 (D.C.Cir.1927) ("A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of his own judgment upon the propriety of the act being done." (citation and internal quotation marks omitted)). In fact, the legislative *250 history of § 512(h) indicates that Congress specifically intended the issuance of the subpoena to "be a ministerial function." S.Rep. No. 105-190, at 51 (1998).
Stretching back to the days of Chief Justice Marshall, the Supreme Court has repeatedly distinguished between actions that are ministerial in nature and those that constitute an exercise of judicial, legislative, or discretionary executive power. See, e.g., Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233, 10 U.S. 233, 237, 3 L.Ed. 209 (1810) (Marshall, C.J.) (clerk's act of recording an inquisition signed by marshal and jurymen is a "ministerial act which the law directs the clerk to perform ... and requires no exercise of judicial functions"); Elliot v. Lessee of William Peirsol, 26 U.S. 328, 341, 1 Pet. 328, 7 L.Ed. 164 (1828) (in making and recording a certificate of acknowledgment of a deed, clerk of court "acted ministerially, and not judicially"); Ex parte Virginia, 100 U.S. 339, 348, 10 Otto 339, 25 L.Ed. 676 (1879) (selection of jurors "surely is not a judicial act" but "is merely a ministerial act"); Central Loan & Trust Co. v. Campbell Comm'n Co., 173 U.S. 84, 95, 19 S.Ct. 346, 43 L.Ed. 623 (1899) (probate judge's grant of an order for attachment did "not involve the discharge of a judicial function but merely the performance of a ministerial duty"); ICC v. Chicago Great W. Ry. Co., 209 U.S. 108, 117-18, 28 S.Ct. 493, 52 L.Ed. 705 (1908) (positing distinction between duties that are "ministerial, and therefore such as may legally be imposed upon a ministerial body" and those that are "legislative, and therefore, under the Federal Constitution, a matter for congressional action"); Wells v. Roper, 246 U.S. 335, 338, 38 S.Ct. 317, 62 L.Ed. 755 (1918) (decision by Postmaster General and his deputy to cancel contract "was executive in character, not ministerial, and required an exercise of official discretion"); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 479, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (District of Columbia Court of Appeals acted judicially, not ministerially, in considering petitions for waiver of bar admission requirements). [FN8] Chief Justice Marshall specifically noted in Custiss that "the legislature may direct the clerk of a court to perform a specified service, without making his act the act of the court." 10 U.S. at 236, 6 Cranch 233.
FN8. See also Dornan v. Sanchez, 978 F.Supp. 1315, 1326 (C.D.Cal.1997) (court's issuance of subpoenas in connection with election contest to be adjudicated by House of Representatives is a "ministerial" function that does not require the court to "exercise its own judicial power").
Here, the fact that Congress has directed an employee of the judicial branch to carry out a specific non-discretionary function neither implicates Article III judicial power nor involves federal judges in an investigation of the sort properly relegated to one of the other branches. In a real-world sense, no Article III judge takes any action with respect to a § 512(h) subpoena until the copyright holder moves to enforce the subpoena or the service provider moves to quash it--at which time there is a concrete controversy sufficient to confer jurisdiction under Article III of the Constitution.
Verizon objects to this line of analysis, arguing that a § 512(h) subpoena is issued in the name of the district court and thus should be treated as an act of the court. And, indeed, it is true that because the procedures in Fed.R.Civ.P. 45 governing enforcement of a subpoena duces tecum are applicable to a § 512(h) subpoena, see 17 U.S.C. § 512(h)(6), a service provider's failure to comply with a § 512(h) subpoena could, like a failure to comply with a *251Rule 45 subpoena, be construed as a violation of a court order, providing a basis for contempt sanctions. See Waste Conversion, Inc. v. Rollins Envtl. Servs. (NJ). Inc., 893 F.2d 605, 608 (3d Cir.1990) (en banc) (assuming "for purposes of this appeal," that failure to comply with a Rule 45 subpoena for testimony could subject a person to criminal contempt); Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1340 (8th Cir.1975) ("A subpoena is a lawfully issued mandate of the court issued by the clerk thereof."); Fed.R.Civ.P. 45 advisory committee notes for 1991 amendment ("Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act in defiance of a court order and exposes the defiant witness to contempt sanctions."). But even in the Rule 45 context, courts recognize that a subpoena issued upon express order of a judge and a subpoena issued by the clerk of the court are not equivalent. See Waste Conversion, 893 F.2d at 608 ("A subpoena, obtainable as of course from the Clerk of the Court, is not of the same order as one issued by a judicial officer in the resolution of a specific dispute."); Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir.1991) (same); Fed.R.Civ.P. 45 advisory committee notes for 1991 amendment ("But, because the command of the subpoena is not in fact one uttered by a judicial officer, contempt should be very sparingly applied when the nonparty witness has been overborne by a party or attorney."); see also Doe v. DiGenova, 779 F.2d 74, 85 (D.C.Cir.1985) (grand jury subpoena is not an "order of a court" unless specifically approved by a court). The better view here is that because the issuance of a § 512(h) subpoena is a ministerial task accomplished without judicial involvement, it does not implicate Article III judicial power or improperly place federal judges in an investigatory role.
In any event, assuming that the issuance of a § 512(h) subpoena can be conceptualized as a judicial act, Verizon's challenge still fails. In the first place, § 512(h) is by no means as unique as Verizon claims. Congress has enacted several provisions that specifically authorize the clerk of the district court to issue subpoenas despite the absence of a pending case or controversy in the federal courts. See, e.g., 2 U.S.C. § 388 (subpoenas for depositions in connection with proceedings in the House of Representatives); 35 U.S.C. § 24 (subpoenas for evidence to be used in connection with proceedings in Patent and Trademark Office); 45 U.S.C. § 157(h) (subpoenas at the request of arbitrators under the Railway Labor Act); 7 U.S.C. § 2354(a) (subpoenas for evidence to be used in connection with proceedings in Plant Variety Protection Office). Moreover, these provisions are not recent innovations but rather were firmly established by the time that § 512(h) was enacted in 1998. See Dornan, 978 F.Supp. at 1319 (noting that precursor to 2 U.S.C. § 388 was enacted in 1798); Act of July 8, 1870, ch. 230, § 44, 16 Stat. 204 (original source of 35 U.S.C. § 24); Railway Labor Act, ch. 347, § 7, 44 Stat. 577 (1926) (original source of 45 U.S.C. § 157(h)); Pub.L. 91-577, tit. I, § 24, 84 Stat. 1544 (1970) (original source of 7 U.S.C. § 2354(a)).
But even setting aside these particular provisions, it is clear that "federal courts and judges have long performed a variety of functions that ... do not necessarily or directly involve adversarial proceedings within a trial or appellate court." Morrison, 487 U.S. at 681 n. 20, 108 S.Ct. 2597; see also United States v. Reagan, 453 F.2d 165, 173 n. 4 (6th Cir.1971) ("The invocation of judicial power prior to formal charges being made or before filing suit is indeed a common practice in our jurisprudence."). In the criminal context, for example, *252 courts issue warrants, see Fed.R.Crim.P. 41, and review applications for wire taps, see 18 U.S.C. §§ 2516, 2518, "both of which may require a court to consider the nature and scope of criminal investigations on the basis of evidence submitted in an ex parte proceeding." Morrison, 487 U.S. at 681 n. 20, 108 S.Ct. 2597. Courts also assist grand juries in their investigative function by compelling the testimony of witnesses, despite the absence of a traditional adversarial proceeding. See id. [FN9] And Congress has authorized district courts to require testimony or other evidence for use in a foreign tribunal, even where no proceeding is yet pending in that forum. See 28 U.S.C. § 1782(a); In re: Letter Rogatory, 42 F.3d 308, 310 (5th Cir.1995) ( "Congress abrogated the requirement that the foreign litigation actually be pending before relief could be had under § 1782."). [FN10]
FN9. Verizon baldly asserts that the § 512(h) subpoena context cannot "be analogized to the textually assigned judicial roles of checking Executive power in grand jury investigations and applications for search warrants." See Verizon's Reply Br. Supp. Mot. Quash at 2 n. 3 (citing U.S. Const. amends. IV & V). But the proposition that in these settings courts serve to check Executive power does not undermine the overarching fact that the Constitution acknowledges roles for the judiciary outside the context of a classic case or controversy.
FN10. Moreover, as the United States points out, in the § 1782 setting it is unlikely there will ever be an underlying claim within federal court jurisdiction because the proceeding in the foreign tribunal arises under foreign, not American, law. See Br. Intervenor United States at 8.
In the civil context, perhaps the most deeply rooted analogue to § 512(h) is Fed.R.Civ.P. 27(a). That provision reflects the traditional powers of the courts at equity dating from even before the adoption of the Constitution, see Arizona v. California, 292 U.S. 341, 347, 54 S.Ct. 735, 78 L.Ed. 1298 (1934), and allows a federal court to authorize a person to perpetuate testimony by deposition before an action is filed where doing so would "prevent a failure or delay of justice." Fed.R.Civ.P. 27(a)(3). In order to obtain a Rule 27(a) order, the petitioner seeking testimony must show
1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and the petitioner's interest therein, 3, the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, 4, the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each.
Notably, the requirements for obtaining a § 512(h) subpoena are similarly rigorous. A copyright owner (or a person authorized to act on the owner's behalf) must present to the clerk a proposed subpoena, "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 [Title 17]," and a copy of the notification of claimed infringement. 17 U.S.C. § 512(h)(1), (2). This notification, in turn, must include "substantially the following":
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
*253 (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Id. § 512(c)(3). Thus, under both Rule 27(a) and § 512(h), private parties may avail themselves of judicial machinery to obtain information prior to the filing of a complaint--but only if they satisfy a specific set of criteria and identify with particularity the information they seek to compel.
For its part, Verizon argues vigorously that Rule 27(a) is not sufficiently analogous to § 512(h) to be instructive. Primarily, Verizon contends that Rule 27(a) is distinguished by its requirement for a clear allegation of intent to file a lawsuit. See 8 Charles A. Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2072 (2d ed.1994). Under § 512(h), Verizon points out, the subpoena application need not even come from the copyright holder--the real party-in-interest with standing to bring a lawsuit. In addition, Verizon argues, Rule 27(a) does not allow actual discovery but only the preservation of evidence where necessary, see Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1376 (D.C.Cir.1995), and allows the adverse party the opportunity to contest the petition to perpetuate testimony, see Fed.R.Civ.P. 27(a)(2).
These differences, however, are neither as substantial nor as consequential as Verizon contends. First, although an entity seeking a subpoena under § 512(h) need not state that it expects to be a party to an action cognizable in federal court, it does have to make a sworn statement of good faith belief that a copyright is being used in an unauthorized manner--a statement largely to the effect that a copyright action cognizable in federal court could be asserted (if not by the party seeking the subpoena then by its principal, the copyright holder). Thus, § 512(h), like Rule 27(a), requires as a prerequisite to court action a significant showing as to the existence of a breach or violation into which the court could ultimately be drawn. Moreover, in neither the Rule 27(a) nor the § 512(h) setting can the court be certain that a judicial action will ever be filed. See Penn Mut., 68 F.3d at 1374 ("[A] party need not demonstrate that litigation is an absolute certainty in order to perpetuate testimony pursuant to Rule 27(a).").
With respect to Verizon's distinction between discovery and preservation of evidence under Rule 27(a), it is undisputed that some service providers (although not Verizon) might log only temporarily the identifying information sought on a § 512(h) subpoena. See Tr. of April 1, *254 2003, Hearing at 14-15; Declaration of Frank Creighton ¶ 16. Hence, § 512(h), like Rule 27(a), provides a method for preserving, not merely discovering, information essential to a potential lawsuit. Also lacking in merit is Verizon's argument that Rule 27(a) is distinguished by the possibility of adversarial proceedings contesting the petition. The alleged infringer may receive no notice of a § 512(h) subpoena before his identity is released, but the entity subpoenaed (the service provider) does have the opportunity to contest the subpoena in federal court before it is enforced. See, e.g., ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir.2001) (action addressing service provider's resistance to DMCA subpoena). In other words, § 512(h) does not authorize an entirely ex parte form of judicial compulsion.
Overall then, despite Verizon's objections, Rule 27(a) provides a compelling precedent for judicial compulsion of information outside the context of a pending case or controversy. Furthermore, taking Rule 27(a) together with the other analogues discussed above, there is ample basis for the Court to conclude that the role assigned to the clerk of the court in § 512(h) is countenanced by the Constitution.
Notwithstanding Verizon's contentions, United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988), and Houston Business Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208 (D.C.Cir.1996), do not undermine this conclusion. In Catholic Conference, the Supreme Court held that where a district court lacks subject matter jurisdiction over an action, it also lacks power to issue a contempt citation for failure to comply with a subpoena issued in connection with that action. 487 U.S. at 80, 108 S.Ct. 2268. In Houston Business Journal, the D.C. Circuit held that a district court lacks power to issue a subpoena when the underlying action is asserted in state, not federal, court. 86 F.3d at 1213.
Importantly, in both Catholic Conference and Houston Business Journal, the only conceivable source for the district court's jurisdiction to issue a subpoena was a pending case or controversy; it was the absence of a sound federal case or controversy that was thus fatal to the validity of the subpoenas in question. Here, in contrast, Congress has expressly provided the clerk of the court with the authority to issue § 512(h) subpoenas; thus the clerk need not draw upon the powers arising from jurisdiction over a pending case or controversy. Section 512(h) accordingly presents a situation neither expressly contemplated nor ruled out by the holdings in Catholic Conference and Houston Business Journal. Indeed, the D.C. Circuit implicitly recognized in Houston Business Journal that in settings such as Rule 27(a) the federal courts' subpoena power may properly be asserted in the absence of subject matter jurisdiction over an underlying action. See 86 F.3d at 1213.
Verizon seeks to bolster its position by arguing that § 512(h) offends the policy concerns that underlie the case-or-controversy requirement. According to Verizon, this requirement "ensures both that the judiciary does not take on non-adjudicatory tasks and that neither Congress nor the Executive attempts to foist non-judicial duties on the Article III courts." Verizon's Br. Supp. Mot. Quash at 5 (emphasis omitted). Duties that are inconsistent with the judicial function, Verizon contends, "undermine public confidence in the independence and impartiality of the judiciary and take the courts' resources away from their primary role." Id. By putting the judiciary in the role of the copyright *255 holder's "investigator," Verizon maintains, § 512(h) implicates both of these concerns.
The Court does not agree. In Morrison v. Olson, the Supreme Court identified two principal concerns underlying the general rule, derived from the case-or-controversy requirement, that " 'executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.' " 487 U.S. at 677, 108 S.Ct. 2597 (quoting Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). First, the rule "help[s] ensure the independence of the Judicial Branch"; second, it "prevent[s] the Judiciary from encroaching into areas reserved for other branches." Id. at 678, 108 S.Ct. 2597.
Neither of these concerns is implicated here. Verizon does not appear to be arguing that the second of these concerns is threatened and, in fact, it is clear enough that the activity under § 512(h) poses no danger of encroachment or aggrandizement. Under § 512(h), the clerk carries out a nondiscretionary duty that allows one private party to retrieve information from another private party. This rather passive, ministerial function by court personnel in no way resembles or impedes upon the authority of the Executive and Legislative Branches to pursue active investigation of possible civil or criminal wrongdoing. As the Supreme Court has noted, the "separation of powers 'left to each [Branch] power to exercise, in some respects, functions in their nature executive, legislative and judicial.' " Mistretta v. United States, 488 U.S. 361, 386, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (quoting Myers v. United States, 272 U.S. 52, 291, 47 S.Ct. 21 (1926) (Brandeis, J., dissenting)). Here, the minimal role of court personnel in issuing a § 512(h) subpoena "does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's [or Legislature's] authority to require that the Act be invalidated as inconsistent with Article III." Morrison, 487 U.S. at 683, 108 S.Ct. 2597. [FN11]
FN11. To the extent that a district court issuing a § 512(h) subpoena is properly understood to be exercising nothing other than a ministerial function, it is worth noting that the Supreme Court in Morrison held that the assumption of "essentially ministerial" powers by a special court under the Ethics in Government Act of 1978 did not impermissibly trespass upon the authority of the Executive Branch. Id. at 681, 108 S.Ct. 2597.
With respect to the first concern elucidated in Morrison, there is simply no basis to conclude that § 512(h) undermines the independence or institutional integrity of the Judicial Branch. Under § 512(h), the district court does not take sides in the copyright holder's request for the alleged infringer's name, but rather, through the clerk, serves as a passive, neutral instrument facilitating the attempt to retrieve the name. Furthermore, an Article III judge does not by virtue of the clerk's action become in any way invested in either the request for the alleged infringer's name or the potential copyright infringement case. The judge will still be able to approach any dispute over the information retrieval or the underlying copyright infringement in an entirely objective, unbiased fashion.
In short, given that the clerk only, and not a federal judge, issues a subpoena, § 512(h) does not "pose[ ] any threat to the 'impartial and independent federal adjudication of claims within the judicial power of the United States.' " Id. at 683, 108 S.Ct. 2597 (quoting Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986)). Any possible public perception that federal judges are being enlisted by copyright *256 holders ex parte to investigate possible infringement would be based upon a complete misapprehension of how § 512(h) actually operates, and thus cannot provide a basis for striking down the provision.
There may be some merit, albeit quite limited, to Verizon's argument that § 512(h) foists a burden upon the Article III branch that could impede the judiciary's ability to perform its primary function--adjudication. Although no federal judge need allocate his or her time to issuing § 512(h) subpoenas, if, as Verizon hypothesizes, copyright holders start to present the clerks of the federal courts with tens of thousands of subpoena requests, some strain on the administrative resources of the judicial branch may result. But to date, that concern is entirely speculative, as no such barrage of requests has occurred. The statutory requirements for seeking a subpoena under § 512(h) serve, to some extent, to curtail the threat. Morever, Congress could ameliorate any additional burden on the courts by providing additional funding or resources. Verizon's challenge based on limited resources of the judiciary therefore cannot carry the day at this time.
In sum, § 512(h) does not place the Article III branch in a role inconsistent with that accorded to it under the Constitution. To the extent that the power of the judiciary is even implicated by the issuance of a subpoena under § 512(h), which assigns only a ministerial function to the clerk of the court, there are abundant analogues both in the criminal and civil contexts for judicial action in the absence of a pending federal case or controversy, including the close parallel of Rule 27. [FN12] And whatever authority is granted under § 512(h) presents neither a danger of encroachment nor some other threat to the institutional integrity and independence of the judiciary. Accordingly, and in light of the reluctance of the federal courts to declare an Act of Congress unconstitutional, see Mistretta, 488 U.S. at 384, 109 S.Ct. 647, [FN13] and the *257 substantial deference owed to Congress on copyright matters, see Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 785, 788, 790, 154 L.Ed.2d 683 (2003), Verizon's contention that § 512(h) is unconstitutional must fail.
FN12. Because the Court concludes that § 512(h) is constitutional on the grounds that it involves only a ministerial function by judicial personnel and is consonant with the role that federal courts have long played in other settings, the Court need not reach an alternate argument advanced by RIAA and the United States--that a case or controversy sufficient to provide a jurisdictional basis for the issuance of a subpoena inheres in the dispute between the copyright holder and the service provider over disclosing the alleged infringer's name. The Court notes, however, that when requesting a subpoena from the clerk of the court, a copyright holder need not assert that a disagreement over whether to provide the alleged infringer's name has emerged or will emerge. See 17 U.S.C. § 512(h)(1), (2). Indeed, the § 512(h) subpoena may constitute the copyright holder's first request for the alleged infringer's name, and conceivably the service provider will have no objections to disclosing the name (although, in this particular case, RIAA did make a pre-subpoena request for the name and Verizon did object). Thus, at the time of issuance, a § 512(h) subpoena will not necessarily be tethered to a present or even anticipated "adversary proceeding, involving a real, not a hypothetical, controversy" over providing the name. Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, 259, 53 S.Ct. 345, 77 L.Ed. 730 (1933). Section § 512(h) is therefore not, as RIAA and the United States contend, analogous to 29 U.S.C. § 1132(c)(1), which allows an ERISA beneficiary to bring a civil action against a plan administrator for information only after the administrator has failed or refused to comply with a request for the information.
FN13. Verizon cites Justice Scalia's dissenting opinion in Morrison for the proposition that deference is not owed to Congress in assessing the constitutionality of a statute where separation of powers issues are at stake. But one of the factors motivating Justice Scalia's conclusion that deference was unwarranted in Morrison was the fact that, in that case, the "political branches [were] ... in disagreement" as to the constitutionality of the statute at issue, and thus neither branch could "be presumed correct." Morrison, 487 U.S. at 705, 108 S.Ct. 2597 (Scalia, J., dissenting). Here, of course, the Executive Branch has now intervened in this case to defend the constitutionality of the statute, and hence the political branches are in full accord. Moreover, in Mistretta, which followed Morrison and involved separation of powers issues concerning the independence and integrity of the judiciary, the Supreme Court stated unequivocally: " 'When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.' " 488 U.S. at 384, 109 S.Ct. 647 (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (opinion concurring in judgment)).
III. SECTION 512(h) DOES NOT VIOLATE THE FIRST AMENDMENT
Verizon also contends that the subpoena authority in 512(h) violates the First Amendment rights of Internet users--by piercing their anonymity--both because it does not provide sufficient procedural protection for expressive and associational rights and because it is overbroad and sweeps in protected expression. Although these are certainly important considerations, the Court concludes that § 512(h) does not offend the First Amendment.
A. Verizon Has Standing to Assert the First Amendment Rights of its Subscribers
[2] A "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.' " Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). [FN14] This rule prevents "premature interpretations of statutes in areas where their constitutional application might be cloudy" and "assures the court that the issues before it will be concrete and sharply presented." Sec'y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). The Supreme Court "has altered its traditional rules of standing to permit--in the First Amendment area--'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' " Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)). As the Supreme Court stated in Broadrick:
Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
Id.; accord Joseph H. Munson Co., 467 U.S. at 956, 104 S.Ct. 2839 (party may assert First Amendment overbreadth challenge "of another without regard to the ability of the other to assert his own *258 claim"). Thus, even though Verizon's two subscribers here could arguably assert their own rights, [FN15] Verizon nonetheless may assert a First Amendment challenge on their behalf.
FN14. Although RIAA does not directly challenge Verizon's standing to assert the First Amendment rights of its subscribers, the Court nonetheless must determine whether Verizon has standing to bring these claims. "The federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.' " FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).
FN15. The alleged infringers could assert their own First Amendment rights, while still protecting their anonymity, as "John Doe" litigants. Verizon has now notified both subscribers of RIAA's subpoenas and allegations of copyright infringement.
[3] Although Verizon's First Amendment rights are not directly implicated by RIAA's subpoenas, "[f]acial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society-- to prevent the statute from chilling the First Amendment rights of other parties not before the court." Joseph H. Munson Co., 467 U.S. at 958, 104 S.Ct. 2839.
Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged.
Id. at 956, 104 S.Ct. 2839. A plaintiff's "ability to serve that function has nothing to do with whether or not its own First Amendment rights are at stake." Id. at 958, 104 S.Ct. 2839.
Verizon is, moreover, an adequate advocate to assert the First Amendment rights of its subscribers. The relationship between an Internet service provider and its subscribers is the type of relationship courts have found will ensure that issues will be "concrete and sharply presented." Verizon has a vested interest in vigorously protecting its subscribers' First Amendment rights, because a failure to do so could affect Verizon's ability to maintain and broaden its client base. The Supreme Court has recognized third-party standing in similar business/client relationships. See Virginia v. American Booksellers Assoc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (bookstores may raise First Amendment rights on behalf of booksellers); Joseph H. Munson Co., 467 U.S. at 958, 104 S.Ct. 2839 (professional fundraiser may assert First Amendment rights of its client charities); Dep't of Labor v. Triplett, 494 U.S. 715, 720, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) ("A restriction upon the fees a lawyer may charge that deprives the lawyer's prospective client of a due process right to obtain legal representation falls squarely within this principle."); Craig v. Boren, 429 U.S. 190, 194-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (beer vendor may assert equal protection claims of males not allowed to purchase beer until they turn 21); see also Broadrick, 413 U.S. at 612, 93 S.Ct. 2908 ("Overbreadth attacks [raised by third-parties] have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations."). Verizon's relationship with its client subscribers is the kind of relationship that warrants allowing Verizon to assert a First Amendment challenge on their behalf. [FN16]
FN16. The Court is also aided in this case by the submissions of amici representing the interests of Internet users.
B. The First Amendment Protects Anonymous Expression on the Internet
[4] The Supreme Court has recognized a right of anonymity within the First *259 Amendment. Buckley v. American Constitutional Law Found., 525 U.S. 182, 200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (invalidating, on First Amendment grounds, a Colorado statute that required initiative petitioners to wear identification badges); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (overturning Ohio law that prohibited distribution of campaign literature without name and address of the person issuing the literature; "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent"); Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (invalidating California statute prohibiting distribution of handbills without name and address of preparer). [FN17] Courts have also recognized that the protections of the First Amendment reach expression on the Internet. See, e.g., Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates further than it could from any soapbox."); 2TheMart.Com, 140 F.Supp.2d at 1092 ("First Amendment protections extend to speech via the Internet.").
FN17. Courts have acknowledged some limitations on the subpoena power when its invocation affects First Amendment rights involving anonymity. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (discussing First Amendment implications of civil subpoena to disclose membership list); Doe v. 2TheMart.Com Inc., 140 F.Supp.2d 1088, 1091 (W.D.Wash.2001) (addressing First Amendment rights when corporation served subpoena on ISP to obtain identity of anonymous shareholders in derivative action); Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 89 F.R.D. 489 (C.D.Cal.1981) (discussing First Amendment implications of civil subpoena to disclose names of confidential journalistic sources).
An individual's anonymity may be important for encouraging the type of expression protected by the First Amendment. "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511. Indeed, "quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity." Id. at 342, 115 S.Ct. 1511. As stated in Talley, "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." 362 U.S. at 64, 80 S.Ct. 536. Hence, several lower court cases have found that First Amendments rights, particularly the right to anonymity, extend to expression on the Internet. See, e.g., 2TheMart.Com, 140 F.Supp.2d at 1097 ("the constitutional rights of Internet users, including the right to speak anonymously, must be carefully safeguarded"); ACLU v. Johnson, 4 F.Supp.2d 1029, 1033 (D.N.M.1998) (striking law "that prevents people from communicating and accessing information anonymously"); Columbia Ins. Co. v. Seescandy.Com, 185 F.R.D. 573, 578 (N.D.Cal.1999) (recognizing "legitimate and valuable right to participate in online forums anonymously or pseudonymously").
But when the Supreme Court has held that the First Amendment protects anonymity, it has typically done so in cases involving core First Amendment expression. See, e.g., Watchtower Bible, Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 153, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (striking down ordinance requiring permit for door-to-door advocacy "not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills"); *260 Buckley, 525 U.S. at 199, 119 S.Ct. 636 (striking down petition circulation rule requiring petitioners to be registered voters because "that endeavor ... of necessity involves ... the expression of a desire for political change"); McIntyre, 514 U.S. at 346, 115 S.Ct. 1511 ("the speech in which Mrs. McIntyre engaged-- handing out leaflets in the advocacy of a politically controversial viewpoint-- is the essence of First Amendment expression"). As the Supreme Court has explained, "[t]he First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' " Id. at 346, 115 S.Ct. 1511 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). "When a law burdens core political speech, we apply 'exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest." Id. at 347, 115 S.Ct. 1511.
The DMCA, however, does not directly impact core political speech, and thus may not warrant the type of "exacting scrutiny" reserved for that context. Section 512(h) deals strictly with copyright infringement. Verizon concedes, as it must, that there is no First Amendment defense to copyright violations. The "Supreme Court ... has made it unmistakably clear that the First Amendment does not shield copyright infringement." Universal City Studios, Inc. v. Reimerdes, 82 F.Supp.2d 211, 220 (S.D.N.Y.2000); see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 568, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (rejecting First Amendment challenge to copyright infringement action); Zacchini v. Scripps-Howard, 433 U.S. 562, 574-78, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). In other words, "the First Amendment is not a license to trammel on legally recognized rights in intellectual property." In re Capital Cities/ABC, Inc., 918 F.2d 140, 143 (11th Cir.1990) (quotations omitted). Indeed, copyrights serve as important incentives to encourage and protect expression: "the Framers intended copyright itself to be the engine of free expression." Eldred, 123 S.Ct. at 788 (quoting Harper & Row, 471 U.S. at 558, 105 S.Ct. 2218). "By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Id. Nonetheless, the Court concludes for present purposes that there is some level of First Amendment protection that should be afforded to anonymous expression on the Internet, even though the degree of protection is minimal where alleged copyright infringement is the expression at issue.
C. § 512(h) Provides Sufficient Safeguards to Protect Internet Users' Rights
[5] Verizon maintains that the DMCA does not provide adequate safeguards to protect Internet users' rights of expression and association. In this regard, Verizon relies heavily on the Supreme Court's decision in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), which overturned a federal statute authorizing prior restraint and censorship of obscene materials sent through the mail. The Court in Blount held that "the line between speech unconditionally guaranteed and speech which may legitimately be regulated ... is finely drawn," and thus "[t]he separation of legitimate from illegitimate speech calls for sensitive tools." Id. at 417, 91 S.Ct. 423 (quoting Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)). The strictures in Blount and its progeny, however, do not apply outside the obscenity realm; moreover, even if they did, the DMCA contains *261 adequate safeguards to ensure that the First Amendment rights of Internet users will not be curtailed.
Blount struck down a statute that authorized the Postmaster General to halt the use of the mails for commerce in allegedly obscene materials and permitted detention of mail pending resolution of an obscenity determination.
Since § 4006 on its face, and § 4007 as applied, are procedures designed to deny use of the mails to commercial distributors of obscene literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment of constitutionally protected expression, for Government is not free to adopt whatever procedures it pleases for dealing with obscenity ... without regard to the possible consequences for constitutionally protected speech. Rather, the First Amendment requires that procedures be incorporated that ensure against the curtailment of constitutionally protected expression, which is often separate from obscenity only by a dim and uncertain line.
400 U.S. at 416, 91 S.Ct. 423 (citations omitted). Because the government was censoring speech and regulating obscenity, the Court "insist[ed] that regulations of obscenity scrupulously embody the most rigorous procedural safeguards." Id. "[T]he fatal flaw of the [statute's] procedure," the Court explained, was that it "fail[ed] to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material." Id. at 418, 91 S.Ct. 423.
The Supreme Court's decision in Blount cannot be read as broadly as Verizon would like. The statute challenged in Blount authorized government censorship and prior restraint of allegedly obscene material sent through the mail, without any judicial determination of obscenity. In such circumstances, the Court emphasized, "the censor's business is to censor." Id. at 419, 91 S.Ct. 423. "The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.' " Id. (quoting Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). The Court emphasized that "it is vital that prompt judicial review on the issue of obscenity--rather than merely probable cause--be assured on the Government's initiative before the severe restrictions in [the statute] are invoked." Id. at 420, 91 S.Ct. 423.
Unlike the statute in Blount, however, the DMCA neither authorizes governmental censorship nor involves prior restraint of potentially protected expression. Section 512(h) merely allows a private copyright owner to obtain the identity of an alleged copyright infringer in order to protect constitutionally-recognized rights in creative works; it does not even directly seek or restrain the underlying expression (the sharing of copyrighted material). Thus, the DMCA does not regulate protected expression or otherwise permit prior restraint of protected speech. It only requires production of the identity of one who has engaged in unprotected conductsharing copyrighted material on the Internet. The statute in Blount, in contrast, authorized both prior restraint and censorship by the government--a far more "severe restriction" on First Amendment rights. Content-based prior restraint of expressive activity, the Supreme Court has held, warrants the strictest scrutiny known to First Amendment jurisprudence. See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (" 'Any system of *262 prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' ") (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)). The DMCA places no limits on protected activity; it governs unprotected copyright piracy, and § 512(h) reaches only the identity of the subscriber (already known to the service provider), not any underlying expression. Moreover, the content of § 512(h) is not obscenity but copyright legislation, where "[t]he wisdom of Congress' action ... is not within [the Court's] province to second guess." Eldred, 123 S.Ct. at 790.
The Supreme Court has not extended Blount's requirements of "built-in safeguards" and judicial review beyond the obscenity context, [FN18] and lower federal courts have declined to apply Blount and its progeny in other contexts. [FN19] Because the DMCA does not address obscenity and does not censor or otherwise authorize prior restraint of expression, the Court finds Verizon's reliance on Blount is misplaced.
FN18. The application of Blount has been limited to obscenity settings. See, e.g., FW/PBS v. City of Dallas, 493 U.S. 215, 239, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (licensing ordinance for adult entertainment industry); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (sex and nudity in play); Paris Adult Theatre v. Slaton, 413 U.S. 49, 55, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Georgia obscenity law relating to films in theaters); United States v. Thirty-Seven Photographs, 402 U.S. 363, 368, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) (forfeiture of obscene photographs found in luggage); United States v. Reidel, 402 U.S. 351, 359, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) ("if government chooses a system of prior restraints as an aid to its goal of proscribing obscenity, the system must be designed to minimize impact on speech which is constitutionally protected") (Marshall, J., concurring). In a First Amendment challenge involving a labor context, the Supreme Court--citing Blount--explained that "[i]n other First Amendment contexts, of course, we have required swift judicial review of the challenged governmental action. In this context, we do not believe that such special judicial procedures are necessary." Chicago Teachers Union v. Hudson, 475 U.S. 292, 307 n. 20, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986).
FN19. See, e.g., Cannabis Action Network, Inc. v. City of Gainesville, 231 F.3d 761, 775 (11th Cir.2000) (Blount line of cases "predominantly involved censorship" of obscene materials); O'Connor v. City and County of Denver, 894 F.2d 1210, 1223 (10th Cir.1990) ("The Freedman requirements [adopted by the Court in Blount ] are limited to prior restraints on protected expression."); United States v. Outpost Development Corp., 369 F.Supp. 399, 402 (C.D.Cal.1973) ("[w]e read Blount as being applicable to questions involving alleged obscenity, but not to alleged fraudulent schemes"); Lynch v. Blount, 330 F.Supp. 689, 694 (S.D.N.Y.1971) ("We think the safeguards defined in Blount for obscenity cases are wholly inappropriate, unnecessary and inapplicable to the field of commercial fraud.").
Even if such safeguards were required, however, the DMCA includes sufficient procedures to prevent any substantial encroachment on the First Amendment rights of Internet users. Before a copyright owner (or its agent) can obtain a § 512(h) subpoena, for example, one must have a "good faith belief" that the use of copyrighted material is not authorized by the owner. 17 U.S.C. § 512(c)(3)(A)(v). Moreover, the DMCA requires a copyright owner to submit
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.
Id. § 512(h)(2)(c). The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner. Id. § 512(c)(3)(A)(vi). These *263 provisions provide substantial protection for Internet users against baseless or abusive subpoenas. [FN20] In fact, the statute contains an important disincentive for false representations, thereby further protecting against abusive or harassing subpoenas. See id. § 512(f) (any person who "knowingly materially misrepresents" that activity is infringing "shall be liable for damages, including costs and attorneys' fees, incurred by the alleged infringer" as a result of the misrepresentation). With all these protections, it is unlikely that § 512(h) will require disclosure, to any significant degree, of the identity of individuals engaged in protected anonymous speech, as opposed to those engaged in unprotected copyright infringement.
FN20. Congress specifically enacted these procedural requirements to prevent mistakes and abuse. See S.Rep. No. 105-190, at 9 (explaining that the DMCA contains "important procedural protections for individual Internet users to ensure that they will not be mistakenly denied access to the World Wide Web").
Verizon asserts that, under the DMCA, a copyright owner does not have to demonstrate that the allegation of copyright infringement could withstand a motion to dismiss. However, in order to obtain a subpoena, the copyright owner must, in effect, plead a prima facie case of copyright infringement. See Feist Publ'ns, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (the elements of a prima facie case of copyright infringement are "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original"); accord, Lulirama, Ltd. v. Axcess Broadcast Svcs., 128 F.3d 872, 884 (5th Cir.1997). Under § 512, one must assert ownership of an exclusive copyright, § 512(c)(3)(A)(i), and a good faith belief that the use of copyrighted material is not authorized, § 512(c)(3)(A)(v). In other words, the subpoena notification must establish ownership and unauthorized use--a prima facie case of copyright infringement. [FN21]
FN21. Although the standard for obtaining a § 512(h) subpoena differs somewhat from the standard for obtaining a subpoena through the more traditional procedure governed by Fed.R.Civ.P. 11, the difference is not substantial. Under § 512(c)(3)(A)(v), a copyright owner must have a "good faith belief" that the use of the copyrighted material is not authorized. Under Rule 11, a party or attorney can be sanctioned absent an "objective" basis that the claim was sound. See Tahfs v. Proctor, 316 F.3d 584, 594 (6th Cir.2003) (requiring objective basis for claims under Rule 11); Byrne v. Nezhat, 261 F.3d 1075, 1105-06 (11th Cir.2001) (same). Both procedures allow for sanctions for any baseless or meritless claims.
Lastly, the DMCA provides that the Federal Rules of Civil Procedure govern the issuance, service, enforcement, and compliance of subpoenas. 17 U.S.C. § 512(h)(6). Hence, access to the courts and the judicial supervision Verizon urges to protect Internet users is available. Service providers or their subscribers, for example, can employ Fed.R.Civ.P. 45 to object to, modify or move to quash a subpoena, or even to seek sanctions. See, e.g., Fed.R.Civ.P. 45(c)(1) (authorizing sanctions for overbroad, burdensome, or vexatious subpoenas). This adds yet another layer of protection for Internet users. [FN22] Thus, in sum, the Court rejects *264 Verizon's contention that § 512 does not provide sufficient safeguards or judicial supervision to protect Internet users' First Amendment rights, including anonymity.
FN22. These provisions