In the early 2000s, the music industry took a stand against online piracy by going after tens of thousands of alleged pirates through U.S. courts.
The RIAA tracked down IP addresses of suspected music pirates and requested corresponding DMCA subpoenas, hoping to link these addresses to subscribers’ contact details.
This initially worked well. However, as the practice became more common ISPs began to object. They countered that DMCA subpoenas don’t apply to mere conduit providers. Appeal courts eventually agreed and effectively banned the practice decades ago.
Rightsholders were still able to sue alleged pirates. However, instead of easily obtaining the identities through a relatively cheap DMCA subpoena procedure, they would have to file a full complaint in federal court, with full judicial oversight.
‘Copyright Trolls’
This more cumbersome path was not ignored. In the late 2010s, waves of lawsuits were filed in U.S. courts targeting alleged BitTorrent ‘pirates’. The associated account holders were still identified through a subpoena but this time within a proper copyright action.
This practice, which some refer to as ‘copyright trolling’, is still prevalent today. Every year, many thousands of copyright lawsuits are filed in the U.S. These are typically closed within months, often after an undisclosed settlement is reached with the defendants.
Most of the cases against alleged pirates are now filed by a single adult entertainment company, Strike 3 Holdings. There are other companies that are interested in identifying pirates too but the relatively high filing fee for these lawsuits is seen as a roadblock.
DMCA Subpoena Revival in Court
To bypass these costs, some rightsholders have started to revive the DMCA subpoena shortcut. Drawing inspiration from the RIAA’s early efforts, they once again used the DMCA subpoena process to obtain the personal details of suspected copyright infringers.
These recent DMCA subpoenas progressed quietly, and many were granted with little fanfare or pushback. That changed in 2023 when a Cox subscriber, suspected of pirating the movie Fall, filed an objection in court.
The objection prompted Cox Communications to intervene. The Internet provider challenged the use of DMCA subpoenas, as detailed in DMCA §512(h). Similar to the earlier opposition against the RIAA’s attempts, the ISP argued that DMCA subpoenas don’t apply to mere conduit providers, as defined under § 512(a).
Last year, a district court judge in Hawaii sided with Cox. The court ruled that DMCA subpoenas don’t apply to mere conduit services, but do apply to other providers that store or link to infringing content directly. As such, the movie companies’ request for a subpoena was denied.
Movie Companies Appeal
The movie companies, including Voltage Holdings, Millennium Funding and Capstone Studios were persistent. They filed a petition at the Ninth Circuit Court of Appeals, arguing that the district court’s interpretation of the DMCA was overly narrow.
The movie studios argued that the district court’s decision relied on dated precedents, which don’t reflect the realities of the modern Internet. They countered that ISPs do play a role in facilitating piracy, even if indirectly, and should be subject to DMCA subpoenas.
“A careful reading of the full text of 17 U.S.C. §512 leads to the unquestionable conclusion that Congress intended for DMCA subpoenas to apply to §512(a) service providers despite the contrary conclusions of Verizon and Charter,” their petition read.
In December, Cox responded to these arguments at the Court of Appeal. According to the ISP, Congress clearly excluded ISPs from this legal DMCA subpoena ‘shortcut’.
EFF Chimes in with ‘Troll’ Warning
Cox is not the only one to stand up against the movie companies. The Electronic Frontier Foundation (EFF) recently filed an amicus curiae brief, urging the court to keep the status quo intact.
Without naming names, EFF warns that allowing the DMCA subpoena route to identify ISP account holders will feed ‘copyright trolls’. They will see it as an easy route to obtain swift settlements, including those against innocent subscribers.
Whether settlements are planned by the movie companies in this case is not clear, but EFF notes that classic copyright trolls would benefit from this cheap shortcut.
“To achieve higher returns from settlements with less expense, practitioners of the copyright trolling business model have an incentive to pursue settlements from the ISP subscribers identified through subpoenas to ISPs, even where the subscriber is not necessarily the infringer,” EFF writes.
EFF: Oversight is Key
The precedents set in the RIAA vs. Verizon and Charter cases are key to protect these subscribers. They require rightsholders to file a proper lawsuit, instead of obtaining personal details through a simplified process.
This oversight is important, EFF says, as in previous lawsuits filed via the proper route, courts have rejected subpoenas because there was no evidence that the infringing IP address was used by the person who paid the ISP bills.
For example, in the Cobbler case, the Court of Appeal ruled that since several people can use the same Internet connection, rightsholders must present more than just an IP address to make their case. The DMCA subpoena procedure removes this check, EFF notes.
“Breaking with the long-established precedents of Verizon and Charter by permitting copyright holders to issue §512(h) subpoenas to ISPs who simply transmit data would bypass an important mechanism of court oversight and invite more coercive settlement demands against internet subscribers,” EFF concludes.
The Ninth Circuit Court of Appeals will now review the arguments before deciding how the DMCA should be interpreted. It’s clear that the stakes are significant for all parties involved.
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A copy of EFF’s amicus curiae brief, for which the paper versions were filed at the Ninth Circuit Court of Appeals on January 3, is available here (pdf).
From: TF, for the latest news on copyright battles, piracy and more.
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