At issue in the RIAA's request is section 512 of the DMCA, which permits a copyright owner to send a subpoena ordering a "service provider" to turn over information about a subscriber. The service provider must promptly comply with that order, and no judge's approval is required first. When challenging the subpoena, Verizon said that section 512 does not apply to ISPs that are merely conduits for peer-to-peer users and which are not hosting potentially infringing material on their own servers. Bates rejected that argument, saying that "the court concludes that the subpoena authority of section 512 applies to all service providers within the coverage of the act, including Verizon." A dozen consumer and privacy groups in August filed an amicus brief siding with Verizon and arguing that section 512 of the DMCA is unconstitutional. Their brief said the law violated Americans' rights to be anonymous online: "Purported copyright owners should not have the right to violate protected, anonymous speech with what amounts to a single snap of the fingers." Megan Gray, an attorney who wrote the brief on behalf of groups including the Electronic Frontier Foundation, Consumer Alert, the Electronic Privacy Information Center and the National Consumers League, said Tuesday that she was not surprised by the decision. "I was disappointed that the court did not exert the time and energy to more thoroughly analyse the constitutional issues, which from our perspective were the crux of the case," Gray said. Bates said he did not consider the First Amendment claim since Verizon had not argued that point, but predicted that even if he had, the outcome would have been the same. "Neither Verizon nor any amici has suggested that anonymously downloading more than 600 songs from the Internet without authorization is protected expression under the First Amendment," Bates wrote. "To be sure, this is not a case where Verizon's customer is anonymously using the Internet to distribute speeches of Lenin, Biblical passages, educational materials, or criticisms of the government -- situations in which assertions of First Amendment rights more plausibly could be made." "Verizon didn't bring an explicit challenge to the DMCA because we were one of the parties that negotiated it," Verizon's Deutsch said. "What we did tell the judge was that there were constitutional issues that required the court to construe the law narrowly." In a signal that last week's ruling by the Supreme Court in a copyright-extension case will reverberate in Internet lawsuits, Bates said the Supreme Court's decision stressing "the wisdom of Congress' action" isn't within his power "to second guess." A second pro-Verizon amicus brief filed by the US Internet Industry Association, Yahoo and other groups said that the RIAA was unfairly trying to shift the burden of copyright enforcement to ISPs. "Can anyone doubt that RIAA intends this as a test case?" the brief said. "If this subpoena is enforced, others will soon follow. That will impose substantial costs both for the large ISPs, who may receive thousands of subpoenas, and for the smaller ISPs, for which the burden of even an isolated subpoena may prove overwhelming." The Motion Picture Association of America (MPAA) had backed the RIAA. In its own amicus brief, the group said: "Like the sound recordings implicated by the RIAA's subpoena, the motion pictures produced and distributed by MPAA members are persistently subject to theft by Internet pirates. No tools are more critical in combating this digital piracy than the protections Congress enacted in the Digital Millennium Copyright Act."
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