A provision of the Digital Millennium Copyright Act of 1998 ("DMCA"), 17 USC § 512 (h) allows copyright owners to subpoena an Internet Service Provider ("ISP") to obtain the identities of persons who use the the ISP to publish copyrighted materials on the Internet.

From 1998 through 2003, the Recording Industry Association of America ("RIAA") used the subpoena about 90 times, apparently "testing the waters".

In April, 2003, RIAA persuaded federal District Judge John Bates, a trial judge for the District of Columbia, to overrule constitutional objections to a DMCA subpoena by one of the United States' larget ISPs, Verizon. Verizon appealed and asked the court of appeals for a stay pending appeal, that is, for permission to keep the identities of subscribers secret until the appeals court ruled on its objections. (The appeal is scheduled for argument in September). In June, 2003, the D.C. court of appeals denied the stay and thus forced Verizon to identify the Verizon subscribers who allegedly were violating RIAA member copyrights.

Flush with victory in the D.C. court, the RIAA had the D.C. court clerk issue over 890 DMCA subpoenas, to ISPs and universities around the country.

Note that, if RIAA had tried to get these subpoenas issued in a different district, that district court would not be bound by Judge Bates' decision, which is binding only in the federal district court for Washington D.C.. A Boston or New York judge could quash the subpoenas. In fact, it's a virtual certainty that the D.C. federal district court was selected because RIAA believed that the judges in the district were sympathetic. Now they know that Judge Bates and the appeals court which supervises him are in agreement with their position, so they want to stick to the D.C. district court for all their subpoena needs.

Nonetheless, relying only on the D.C. federal court, the lawyers for RIAA made a serious tactical error. Lawyers for MIT and Boston College announced today they would fight the subpoenas, using various arguments, including something called the "100 mile bulge". Explaining that requires a little background in subpoena law.

"Subpoena" is short for a longer Latin phrase on a writ, which directed the recipient to appear before a court "under pain" (sub poena) that is, under the threat of arrest or fine.

As a lawyer admitted to the bar in my federal district, I have the privilege of issuing my own subpoenas in ordinary litigation. I draw one up, sign it, and have it delivered. I don't even need to go to the court clerk to get it stamped as an official court document. I can do this to make people show up for a deposition or trial to testify as a witness, or to induce a person to produce a document or other evidence. In the latter case, the subpoena is called a "subpoena duces tecum" (from a Latin phrase meaning "bring with you", as in, come to this place and bring with you the documents I want).

Subpoenas under the DMCA, 17 USC § 512 (h), on the other hand, fall into a special category of investigative subpoenas authorized by Congress. They have to be issued by the court clerk. This kind of subpoena does not require an ongoing "case" or "controversy" --normally a constitutional requirement if the judicial branch is involved. See U.S. Const., Article III. Subpoenas issued under the DMCA do not have to be brought in the context of a lawsuit (and generally, the purpose is to gather facts before filing any lawsuit, to wit, the identity of the defendant). The subpoena to an ISP need not be requested by a copyright owner --the person with standing to actually bring an infringement lawsuit-- but rather can be requested by an agent of the owner, including the RIAA. (The DMCA was thus obviously tailor-made for the benefit of industry groups like RIAA and its "Motion Picture" partner in corruption, the MPAA). The only requirement (mostly for the benefit of the target of the subpoena, the ISP) is to show a copyright violation on the Internet by one of the ISP's subscribers.

Otherwise, however, Congress provided that DMCA subpoenas are used and enforced like ordinary litigation subpoenas, and with the same restrictions including territorial restrictions. Paragraph 512 (h)(6) of the DMCA states:

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.

Specifically, then, DMCA subpoenas would be covered by the same rule as litigation subpoenas, Rule 45 of the Federal Rules of Civil Procedure, including its territorial provisions, including what's known as the "100 mile bulge":

a subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena... F.R.Civ.Pro. 45

In other words, lets say I want to take the deposition of a CEO of a corporation in New York City. I can issue a federal subpoena to that CEO, and have a process server serve (hand-deliver) the subpoena to the CEO in New York, but I can't make the CEO travel thousands of miles to testify where I live. I could, however, arrange for a court reporter to be present in New York, or anywhere within 100 miles of New York, like Connecticut or New Jersey, and travel there myself to take the deposition. Thus, I (the lawyer presumably being compensated for this) travel to a place where it would be (relatively) convenient for the witness, not the other way around. The same rule applies if I am just seeking evidence or documents: I have to specify a place to deliver them within 100 miles of the place where the subpoena is served. For trials, if the witness is more than 100 miles from the courthouse where the trial is going to be ("the bulge") I can't compel a witness to show up with a subpoena. I must either convince them to come voluntarily or go take their deposition and use the tape or transcript at trial.

In this day of copiers and fax machines, having a 100 mile territorial limitation for a subpoena duces tecum doesn't make much practical sense: MIT will not have to physically show up in D.C. or literally schlepp down any paper to RIAA's lawyers in Washington. They could just send them e-mail, identifying students who are sharing copyrighted music files. But this is law, and a rule's a rule. RIAA's lawyers goofed: they should have designated a place somewhere within 100 miles of Cambridge, Mass. to deliver a piece of paper with the students' identifying information.

University lawyers can also invoke federal laws requiring that universities protect their student's privacy. The 100 mile rule, however, can be invoked by private ISPs and might force RIAA to give up its home-court advantage in the town where it lavishes lobbying largesse lovingly.


Update: August 8, 2003::

U.S. District Judge Joseph L. Tauro granted MIT's and Boston College's motions to quash the subpoenas on the ground that a subpoena issued in Washington, D.C. could not properly be served in Massachussets.

And you heard it here first!


Caveat: IANYL

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