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Under U.S. law, rightsholders have an option to identify alleged copyright infringers without directly having to file a lawsuit.

Instead, they can request a DMCA subpoena which is typically signed by a court clerk and don’t require any judicial oversight.

Specifically, they allow rightsholders to obtain the personal details of anonymous alleged infringers from third-party internet services where the infringing material was stored or shared. That includes hosting companies and social media platforms.

DMCA Shortcut?

The DMCA specifies that these subpoenas don’t apply to all online services. Mere conduit providers that simply pass on bytes are typically excluded, for example. However, that didn’t stop some rightsholders from using this shortcut to request information from residential ISPs.

Drawing inspiration from the RIAA’s efforts to identify music pirates in the early 2000s, more recently they used the DMCA subpoena process to obtain the personal details of suspected copyright infringers.

Courts in the United States ruled out use of DMCA subpoenas in this context over two decades ago, but more recent attempts presented fresh interpretations while highlighting conflicting case law. Many court clerks granted these new subpoena requests, which required Internet providers to identify hundreds, if not thousands, of alleged pirates.

Cox Successfully Intervened, Filmmakers Appealed

After rightsholders obtained similarly broad DMCA subpoenas from courts around the U.S., Internet provider Cox Communications intervened in one of those cases to defend a subscriber who objected to the handover of their information.

In common with the opposition that ruled out the use of DMCA subpoenas in the early RIAA case, the ISP argued that these subpoenas don’t apply to mere conduit providers, as defined under § 512(a) of the DMCA.

The Hawaii District Court agreed with Cox’s reasoning last year and quashed the subpoena. The ruling concluded that DMCA subpoenas typically don’t apply to DMCA §512(a) services, but do apply to other providers that store or link to infringing content directly.

The film companies, including Capstone Studios and Millennium Funding, didn’t give up, however. After an initial motion for reconsideration failed, they filed an appeal at the Ninth Circuit Court of Appeals. Among other things, the appeal argued that Cox also falls under the definition of DMCA §512(d) providers, as it can remove or disable ‘references or links’ to infringing content.

The rightsholders further argued that DMCA subpoenas also apply to § 512(a) service providers, so should be valid for Cox.

Court of Appeals Keeps Shortcut Closed

After hearing both sides, the Ninth Circuit ruled in favor of Cox, confirming the lower court’s decision. This means that DMCA subpoenas cannot be used to compel residential ISPs to identify subscribers who allegedly pirated content.

The Court ruled that the subpoena process is “inextricably intertwined” with the DMCA’s “notice and takedown” framework. This means that a valid subpoena can only be issued following a takedown notice that identifies content that should be removed or disabled.

Since an ISP like Cox does not store the files users share via BitTorrent, there is nothing for it to “take down”. Therefore, a valid notification cannot be sent, and a subpoena cannot be issued.

From the order

The film companies had argued that by assigning IP addresses and routing traffic, Cox was effectively “linking” subscribers to infringing content. The Court rejected this argument, noting that, based on this logic, the § 512(d) safe harbor would “completely swallow” the § 512(a) safe harbor, as every ISP performs this function.

Finally, the Court dismissed the filmmakers’ argument that Cox could “disable access” via port blocking or null routing. The Court concluded that these measures would not remove the infringing material from the internet.

MPA, RIAA, EFF and Congress

The ruling is in line with previous decisions from other circuits, solidifying the use of DMCA subpoenas as off-limits.

This is good news for subscribers who were at risk of being identified through this shortcut. Rightsholders can still request their identities, but only after filing a regular lawsuit, a more expensive process and harder to scale up.

The Electronic Frontier Foundation (EFF), which submitted an amicus brief in the case, previously argued that allowing these subpoenas would empower “copyright trolls” and lead to coercive settlement demands against ordinary internet users. That concern is off the table now.

The MPA and RIAA will be less pleased with the Ninth Circuit’s decision. While they took no side in the dispute, they feared that the lower court’s ruling against DMCA subpoenas could interfere with their efforts to obtain details of infringers through third-party services such as Cloudflare.

The movie and music industry’s anti-piracy groups filed an amicus brief arguing for a “narrow ruling” that would not reject the possibility that an IP address could function as a “link” under the § 512(d) safe harbor.

However, the Ninth Circuit did not issue a narrow ruling. On the contrary, it confirmed that connecting a user to the internet and assigning them an IP address does not “link” or “refer” that user to any particular infringing material.

Link or refer

The Court did exactly what the MPA and RIAA feared it might do. Of course, this case applies to a residential ISP, Cox, and if a similar challenge is filed in cases where Cloudflare or other providers are targeted, other arguments may be brought to the table.

All in all, the Court of Appeals clarified that rightsholders will have to use the more expensive route if they want to identify alleged BitTorrent pirates. The Court did say that it understood the challenges rightsholders face, but stressed that these should be addressed by lawmakers.

“We are sympathetic to this argument, but whether the DMCA provides a sufficient remedy for copyright holders to vindicate their rights against infringers using P2P networking is ultimately a question for Congress, not the courts,” the decision concludes.

—

The decision by the U.S. Court of Appeals for the Ninth Circuit, issued on August 15, is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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