이용자의 신상정보 개시의무를 부담하는 OSP의 범위 -최근 미국 판례의 동향을 중심으로-

This Article deals with recent development in American case law related to the scope of service provider subject to Digital Millennium Copyright Act (hereinafter referred to as 'DMCA') § 512(h). The facts and holdings of the related cases are as follows: One July 24, 2002, the Recording Industry Association of America (hereinafter 'RIAA') tried to rely on the subpoena authority under the DMCA § 512(h) to compel Verizon Internet Services (hereinafter 'Verizon') to disclose the identity of one of its subscribers. The RIAA thought that a computer using Verizon's internet service was making hundreds of copyrighted works available for download, massively infringing copyright owners' right of distribution. The organization provided Verizon with the computer's IP address, and a list of more than 600 copyrighted files that were allegedly downloaded by the users on a day using KaZaA as well. When Verizon refused to reveal this information, the RIAA brought a motion in the United States District Court of the District of Columbia (hereinafter 'district court') to enforce its subpoena. The crux of Verizon's argument for refusing to turn over the information was based on the fact that it did not store any of the infringing subscriber's material on its system; it merely transmitted the allegedly infringing files. Therefore, Verizon argued that it is not a service provider subject to the DMCA § 512(h). In contrast, the RIAA argued that the § 512(h) subpoena power is not limited to situations where the service providers stores the infringing works, but applies to all situations where an individual uses her service provider's networks to violate copyright owners' right. This case thus presents a core issue of statutory interpretation relating to the scope of the subpoena power under the DMCA. The district court found that the statutory language, structure, history and purpose all indicate that the DMCA § 512(h) subpoena authority applies to all service providers covered by DMCA. Therefore, the court grants RIAA's motion to enforce, and orders Verizon to comply with the properly issued and supported subpoena from RIAA seeking the identity of the alleged infringing users. The RIAA admitted that this case is the first impression case related to the subpoena power under the DMCA. Afterwards, Verizon appealed that decision, and moved to stay the court's order pending resolution of its appeal. In its motion to stay, Verizon asserted constitutional challenges as the primary basis for a stay. That is, Verizon argued that the court's interpretation of § 512(h) raised serious questions in terms of the First Amendment rights of Internet users and presented a critical issue whether a subpoena could issue under Article III under the Federal Constitution in America without an actual "case or controversy" pending in federal court. Denying Verizon's motion to quash RIAA's February 4, 2003 subpoena, the court found that § 512(h) did not violate "case or controversy" requirement under Article III of the Constitution and that § 512(h) did not violate the First Amendment rights of Internet users.