Tracking BitTorrent pirates isn’t all that hard since IP addresses are openly broadcasted. With help from Internet providers, these addresses can then be linked to account holders.
ISPs don’t hand over this data voluntarily; they typically require a subpoena or court order before taking action.
In the United States, subpoenas are typically obtained by filing a copyright complaint in federal court against a “John Doe” who’s known only by an IP address. Most of these cases are filed against a single person, which makes it a relatively expensive process.
DMCA Shortcut
In recent years, some rightsholders have used a shortcut to bypass this costly process. Taking a page from the RIAA’s early efforts to identify music pirates in the early 2000s, they used the DMCA subpoena process to obtain the personal details of suspected copyright infringers.
Unlike regular subpoenas, the DMCA equivalents are not reviewed by a judge and only require a signature from the court clerk. While several courts effectively banned the practice two decades ago, the new attempts cited fresh interpretations and conflicting case law, to back up their requests.
This tactic worked as many courts went along with these new requests, requiring Internet providers to identify hundreds, if not thousands of alleged pirates.
It’s not always clear what the rightsholders do with this personal information, as the eventual follow-ups fall outside the court’s purview. Typically, however, rightsholders reach out to alleged pirates privately to negotiate some type of settlement; either monetary, in exchange for information, or both.
Cox Intervenes with Success
Most of these recent DMCA subpoenas progressed quietly, with little fanfare or pushback, but that changed last year when a Cox subscriber filed an objection in court.
The objection triggered Cox Communications to intervene. The Internet provider decided to challenge the use of the DMCA subpoena tool, as detailed in DMCA §512(h). Similar to the earlier opposition against RIAA’s attempts, the ISP argued that DMCA subpoenas don’t apply to mere conduit providers.
The challenge was fiercely contested by the rightsholders, including film companies Voltage Holdings, Millennium Funding, and Capstone Studios, who argued that ISPs can be required to respond to DMCA subpoenas.
Mere Conduit?
The main contention in this case is whether DMCA subpoenas apply to regular Internet providers. Cox argued that they don’t, as it’s a mere conduit provider. This falls under the DMCA §512(a) safe harbor, which does not require ISPs to take anything down, as nothing is stored by the ISP.
DMCA subpoenas don’t apply to DMCA §512(a) services, but do apply to other providers that store or link to infringing content directly. As such, the movie companies’ request should be denied.
A magistrate judge followed Cox in this reasoning and recommended quashing the subpoena. The Hawaiian District Court agreed, and earlier this year it effectively slammed the breaks on the DMCA shortcut.
The full ruling is much more detailed than the simplified version presented above, but the ultimate conclusion is that movie companies can’t use the DMCA subpoena to unmask alleged BitTorrent pirates. In addition, the court held that any information they had already obtained this way, could no longer be used.
Court Keeps Shortcut Closed
Hoping to change the court’s opinion, the filmmakers swiftly submitted a motion for reconsideration. In addition, they asked to stay the order to destroy any information that was previously obtained, pending a potential appeal.
In the motion for reconsideration, the movie companies argued that Cox and other ISPs are not just mere conduit providers under DMCA §512(a); they would also fall under DMCA §512(d), as they can remove or disable ‘references or links’ to infringing content.
If this argument succeeds, a DMCA subpoena would be valid, as these do apply to services that fall under DMCA §512(d).
The movie companies used various arguments to make their case. For example, they argued that IP addresses are in themselves “references or links to infringing material” which can be disabled through null-routing. In addition, Cox can respond to takedown notices by implementing filters or blocking ports.
The court reviewed these reconsideration arguments but didn’t change its conclusion. While null-routing would work, the measure goes far beyond disabling “access to infringing material” and is therefore not authorized by the DMCA.
“Null routing a subscriber’s IP address is not equivalent to ‘remov[ing], or disabl[ing] access to’ links to infringing material or activity, because null routing a user’s IP address has the outsize effect of terminating that address’s connection to the network,” the court writes.
The same applies to filtering techniques and port blocking, which go further than directly addressing alleged copyright infringements.
“[T]his argument would fail for the same reasons as Petitioners’ ‘null routing’ argument—whether ISPs can in fact ‘remove, or disable access to’ infringing material or not, it would not change the court’s interpretation of §512(d).”
The full motion for reconsideration includes several other attempts to classify Cox as more than a mere conduit provider, but these all fail. Ultimately, the court denied the motion for reconsideration, keeping the DMCA shortcut closed.
Piracy Settlements and User Data
The order is a setback for the rightsholders and also presents a new problem. The movie companies previously used the subpoena to identify Cox subscribers, and already settled with some of them.
Since the court ordered all information from the subpoena to be destroyed and returned, the movie companies fear that Cox will delete all subscriber data, while they still have the option to appeal.
In addition, the movie companies used settlements to obtain testimony from subscribers on their piracy habits, which they would like to use as evidence against pirate sites. If the settlement data is deleted, that evidence can no longer be used.
“If Petitioners destroy this information, their legal proof for asserting legal relief against the piracy website and the subscriber data will be lost,” the movie companies argued, asking the court to stay this ‘destruction’ order.
The movie companies don’t mention any pending lawsuits against pirate sites but they previously identified “watchmovierulz” and “piratebay” as sites that were mentioned as part of a settlement.
The court reviewed the arguments but didn’t change its order. The court notes that Cox already agreed to retain the contested subscriber data pending further appeals, so that will not be lost.
The court further clarified that all pending settlement discussions have to end immediately. In addition, the movie companies can’t use the evidence obtained from earlier settlements in potential lawsuits against pirate sites.
“Petitioners may maintain records of, for example, correspondence and binding settlement agreements with subscribers, but may not continue to seek settlement with any subscriber who has not yet concluded an agreement, and may not use information received from subscribers as evidence in litigation, e.g., against piracy websites.”
All in all, the court’s latest order is another setback for the movie companies but it’s not the end. The filmmakers have already indicated that they plan to appeal the case.
Needless to say, this could prove to be a crucial legal battle for copyright holders, Internet providers, and anyone accused of pirating content via BitTorrent going forward. At the same time, it may also cast doubt on how DMCA subpoenas are used against other services, such as Cloudflare and domain registrars.
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A copy of the Hawaiian District Court’s order denying the motion for reconsideration, as well as the motion to stay, is available here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.
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