Cox to Appeals Court: DMCA Subpoenas Don’t Apply to Us, Period

In a recent filing at the Ninth Circuit Court of Appeals, ISP Cox maintains that DMCA subpoenas don't apply to Internet providers. Several movie studios hope to convince the court otherwise, as that would strengthen their piracy enforcement efforts, making it easier to identify online pirates. According to Cox, however, Congress clearly excluded ISPs from this legal 'shortcut'.

 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. These documents are 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 through third-party internet services where the infringing material is shared or stored. 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 early efforts to identify music pirates in the early 2000s, they once again used the DMCA subpoena process to obtain the personal details of suspected copyright infringers.

While several courts effectively ruled out this option two decades ago, the more recent attempts cite fresh interpretations and conflicting case law to support the requests.

Many court clerks granted these new subpoena requests, requiring Internet providers to identify hundreds, if not thousands of alleged pirates.

Cox Successfully Intervened

Following numerous successful attempts in courts around the U.S., Internet provider Cox Communications intervened in one of these cases, defending a subscriber who objected to the handover of their information.

The ISP decided to challenge 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).

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. This was denied as well, which prompted the filmmakers to file an appeal at the Ninth Circuit Court of Appeals.

Filmmakers Appeal

Filed this summer, the appeal argued that the district court’s interpretation relies on dated precedents, which don’t reflect the realities of the modern Internet. The movie companies noted 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.

Alternatively, the appeal argues that residential ISPs could also be seen as information location tools under the DMCA. These fall under §512(d), which could make an ISP subject to DMCA subpoenas.

“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 movie companies wrote.

Cox: DMCA Subpoenas Don’t Apply, Period

This week, Cox filed its answering brief. In an 84-page-long response, the company rejects the movie companies’ theories. According to the ISP, the language of the law is clear, as Congress intended it.

Cox argues that the DMCA is complex, but it clearly states that the subpoena provision is tied to the larger “notice-and-takedown” framework. These takedowns don’t apply to conduit ISPs, therefore the DMCA subpoenas shouldn’t either.

“When it comes to conduit ISPs, there is no such thing as a DMCA-compliant notification. That is because Congress decided not to subject such ISPs to the notice-and-takedown framework at all. No DMCA notice, no DMCA subpoena.”

The movie companies may disagree with this, and can take their concerns to Congress if they wish the law to change, Cox adds.

“If Capstone thinks conduit ISPs should be subject to the notice-and-takedown framework — and are therefore proper recipients of DMCA notifications and subpoenas — it can push for that legislative change. But Congress made a different judgment when it enacted the DMCA,” the brief reads.

Information Location Tools §512(d)?

The answering brief also rejects the argument that conduit ISPs can fall under §512(d), which applies to information locations services such as search engines. ISPs can also locate information through their networks, and can potentially block or filter infringing content on their end, the argument goes.

According to Cox, this argument is completely unsupported by any DMCA-related cases that went before courts over the past decades.

“Capstone cites no case, no treatise or commentary, no snippet of legislative history that has ever even hinted at this reading of the DMCA. And the implications of sweeping conduit ISPs into subsection (d), thus subjecting them to notice-and-takedown requirements, are staggering.”

If a court decided that conduit ISPs can be subject to takedown notices, it would send shockwaves across the ISP industry. These companies would then have to block and filter content en masse, based on third-party piracy allegations.

This would effectively “upend decades of settled understanding, sending conduit ISPs across the country scrambling to create takedown-based DMCA programs that require swift denials of internet access based on a mere allegation of infringement,” Cox writes.

Going Forward

This doomsday scenario isn’t needed for copyright holders to enforce their rights, Cox notes, as they can file regular lawsuits in federal courts to obtain the identities of alleged file-sharers. This might be a more expensive route, but it’s the right path according to the ISP.

The above is just a brief overview of some of the arguments laid out in the answering brief. Much of it goes into great detail on the various aspects of the DMCA, how these apply to ISPs, and what that means for the present case.

The Ninth Circuit Court of Appeals will now review the arguments from both sides to decide if how the DMCA should be interpreted in this case. It’s clear, however, that the stakes are significant for all parties involved.

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A copy of COXCOM LLC’s answering brief, filed at the Ninth Circuit Court of Appeals yesterday, is available here (pdf)

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