The DC Circuit has blocked enforceability of a subpoena issued to Verizon Communications by the RIAA in an attempt to force Verizon to disclose the identity of certain P2P "music pirates." The ruling was strictly a matter of statutory interpretation.
[W]e agree with the RIAA that Verizon overreaches by claiming the notification described in § 512(c)(3)(A) applies only to the functions identified in § 512(c). As Verizon correctly notes, however, the ISP activities described in §§ 512(b) and (d) are storage functions. As such, they are, like the ISP activities described in § 512(c) and unlike the transmission functions listed in § 512(a), susceptible to the notice and take down regime of §§ 512(b)-(d), of which the subpoena power of § 512(h) is an integral part. We think it clear, therefore, that the cross-references to § 512(c)(3) in §§ 512(b)-(d) demonstrate that § 512(h) applies to an ISP storing infringing material on its servers in any capacity—whether as a temporary cache of a web page created by the ISP per § 512(b), as a web site stored on the ISP's server per § 512(c), or as an information locating tool hosted by the ISP per § 512(d)—and does not apply to an ISP routing infringing material to or from a personal computer owned and used by a subscriber.
RIAA v. Verizon Internet Servs., Inc., No. 03-7053 (D.C. Cir. Dec. 19, 2003) (slip op.) at 13 (PDF, 55kb).
This is not an entirely unsurprising opinion. The problem is not with the "justice" of Verizon's concern for privacy on the Internet, or with the "justice" of the RIAA's attempts to protect the copyrights of its members. It is instead, as the subtext of the opinion indicates, a problem with a badly conceived and drafted statute. Next time, guys, ask individual copyright holders—many of whom are technically far more sophisticated than any of the major distributors, whether in publishing, music, or movies—how to structure the statute. If it had been structured from the user's perspective (in other words, the user complains based upon what/how he sees the infringement) instead of the ISP's perspective in a world of constantly changing technology, the whole issue would have been covered and this decision would not have been necessary.
N.B. This opinion has no relevance to Ellison v. Robertson, which concerns liability of the service provider itself for infringing material. We contend that it was stored on AOL's servers, and that AOL was in any event ineligible for any DMCA safe harbor because it did not comply with § 512(i). AOL contends that the infringing material was only in transition, and that therefore it can claim protection under § 512(a); contra ALS-Scan, Inc., v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001) (identical type of communications at issue are stored, not transitory). No decision has yet been issued by the Ninth Circuit. This is a purposeful invocation of Murphy's Law—by mentioning that no opinion has yet issued, I'm hoping that the perversity of the universe will result in issuing it today.