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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. Drawing inspiration from the RIAA's early efforts to identify music pirates in the early 2000s, they use 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, more recent attempts cite fresh interpretations and conflicting case law to support their requests.
Many courts granted these new requests, which required Internet providers to identify hundreds, if not thousands of alleged pirates.
Cox Successfully Intervenes
Most of these recent DMCA subpoenas progressed quietly, with little fanfare or pushback. That changed last year 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 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 conduit apples providers, as defined under § 512(a).
Earlier this 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.
The rightsholders in this matter, film companies Voltage Holdings, Millennium Funding, and Capstone Studios, swiftly submitted a motion for reconsideration. Among other things, they countered that ISPs are not just ‘mere conduits', since they can remove or disable ‘references or links’ to infringing content.
The Hawaii district court reviewed the opposition, but eventually ruled that the ‘DMCA shortcut' will remain closed.
Movie Companies Take Case to Court of Appeals
The movie companies are not letting this issue go that easily. A few days ago, they filed a petition at the Ninth Circuit Court of Appeals, arguing that the district court's interpretation of the DMCA was overly narrow and hinders their efforts to combat online piracy.
The 81-page petition presents a wide array of arguments. The movie studios argue that the district court's interpretation, which relies on dated precedents, doesn't reflect the realities of the modern Internet. They note 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,” the petition reads.
Key Questions
The appeal touches on various DMCA nuances and how these have been interpreted by courts. Ultimately, two key questions are presented.
First, whether DMCA subpoenas can apply to residential ISPs under §512(a) and second, can ISPs be seen as information location tools. These fall under §512(d), which could make an ISP subject to DMCA subpoenas.
(1) Can a valid subpoena under 17 U.S.C. §512(h) be issued commanding a §512(a) residential Internet service provider (“ISP”) to identify subscribers that use the ISP’s service to share copies of pirated copyright protected content online to the entire world via the BitTorrent peer-to-peer network?
(2) Is a residential ISP a provider of information location tools as defined in §512(d) when it provides a subscriber with customer premise equipment (modems and/or residential gateways) and assigns the subscriber an Internet Protocol (“IP”) addresses and links other users to the subscribers’ assigned IP addresses where the subscriber shares pirated copies of copyright protected Works via the BitTorrent peer-to-peer network?
The first question zooms in on the statutory language of the DMCA which, according to the movie companies, suggests that Congress intended DMCA subpoenas to apply to ‘mere conduit' providers too.
For example, it mentions that §512(e) of the DMCA, which applies to educational institutions, explicitly conditions that a §512(a) service provider should not receive more than two §512(c)(3)(A) notifications within three years.
The District Court, however, concluded that these notifications don't apply to §512(a) providers because there is no material to take down. That's a clear conflict, the movie companies note.
Alternative Angle
The second key question is whether ISPs such as Cox operate as information location tools under §512(d). That would make DMCA subpoenas a valid instrument as well. The petition argues that this applies directly to Cox.
“Cox assigns the IP addresses that are used by its subscribers to share pirated copies of Fall online. Cox links other users to the online location to obtain copies of Fall when it routes their data to and from that IP address. Accordingly, Cox is a §512(d) service provider.”
To support this angle, the rightsholders add that Cox can take technical measures in response to infringing activity.
“Cox can use measures to disable the link to the infringing material such as null routing the IP addresses, blocking the ports associated with BitTorrent activity from the subscribers’ endpoint, or filtering the BitTorrent content from the subscriber’s endpoint,” the petitions reads.
Landmark Appeal
The above is just a brief overview of some of the angles, questions, and arguments laid out in the petition. Much of it goes into great detail on the various DMCA sections, how these are linked, and what that means for the present case.
Whether the court agrees that there's a statutory conflict has yet to be seen. However, the stakes are significant. If rightsholders can identify alleged pirates more easily, enforcement will likely ramp up.
Cox has yet to respond to the appeal. When it does, the ISP's response will likely be mindful of the Supreme Court petition it filed in a separate copyright-related case, where a jury held the ISP liable for pirating subscribers.
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A copy of the petition, filed by Voltage Holdings, Millennium Funding, and Capstone Studios is available here (pdf).
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By David Minister
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