In a decisive blow to major entertainment companies’ anti-piracy efforts, the Ninth Circuit U.S. Court of Appeals has ruled against the use of expedited DMCA subpoenas to identify suspected online pirates. The landmark decision firmly establishes that copyright holders cannot compel Internet Service Providers (ISPs) that function solely as data conduits to reveal subscriber information linked to alleged infringement activities.
The court’s ruling clarifies that subpoenas under DMCA §512(h) must align with the law’s “notice and takedown” framework, which requires service providers to be hosting or linking to infringing content, not merely transmitting traffic. ISPs like Cox Communications, which don’t store user-shared files, cannot receive valid takedown notices that would trigger subpoena issuance, effectively shielding their subscribers from fast-track identification. The case originated when Cox intervened to protect a subscriber whose personal details were sought by filmmakers using DMCA subpoenas.
ISPs operating purely as data conduits remain beyond the reach of expedited DMCA subpoenas, preserving subscriber anonymity from fast-track identification.
This decision deals a significant setback to major U.S. record labels and movie studios, particularly those represented by the Recording Industry Association of America (RIAA). Rights holders must now resort to traditional, more time-consuming legal processes to unmask alleged infringers, substantially hampering swift enforcement actions against online piracy through peer-to-peer file sharing networks. Organizations like collecting societies typically rely on efficient identification methods to enforce the rights of creators they represent. The court emphasized that the resolution of this DMCA issue is a matter for Congress, not the judiciary.
The court specifically rejected arguments that ISPs’ assignment of IP addresses constitutes “linking” subscribers to infringing content, calling such interpretations overly broad and inconsistent with congressional intent. Similarly dismissed was the notion that ISPs could “disable access” to infringing material through port blocking or null routing, as these actions don’t actually remove content from the internet.
This ruling aligns with previous decisions from other circuit courts, creating a consistent legal landscape that distinguishes between “conduit” ISPs protected under §512(a) safe harbor provisions and service providers that take more active roles in content management. Musicians seeking to protect their work from piracy may need to focus more on sync deals as an alternative revenue stream, given the increased difficulty in pursuing individual infringers.
