Victory! Ninth Circuit Limits Intrusive DMCA Subpoenas

The Ninth Circuit upheld an important limitation on Digital Millenium Copyright Act (DMCA) subpoenas that other federal courts have recognized for more than two decades. The DMCA, a misguided anti-piracy law passed in the late nineties, created a bevy of powerful tools, ostensibly to help copyright holders fight online infringement. Unfortunately, the DMCA’s powerful protections are ripe for abuse by “copyright trolls,” unscrupulous litigants who abuse the system at everyone else’s expense.

The DMCA’s “notice and takedown” regime is one of these tools. Section 512 of the DMCA creates “safe harbors” that protect service providers from liability, so long as they disable access to content when a copyright holder notifies them that the content is infringing, and fulfill some other requirements. This gives copyright holders a quick and easy way to censor allegedly infringing content without going to court. 

Section 512(h) is ostensibly designed to facilitate this system, by giving rightsholders a fast and easy way of identifying anonymous infringers. Section 512(h) allows copyright holders to obtain a judicial subpoena to unmask the identities of allegedly infringing anonymous internet users, just by asking a court clerk to issue one, and attaching a copy of the infringement notice. In other words, they can wield the court’s power to override an internet user’s right to anonymous speech, without permission from a judge.  It’s easy to see why these subpoenas are prone to misuse.

Internet service providers (ISPs)—the companies that provide an internet connection (e.g. broadband or fiber) to customers—are obvious targets for these subpoenas. Often, copyright holders know the Internet Protocol (IP) address of an alleged infringer, but not their name or contact information. Since ISPs assign IP addresses to customers, they can often identify the customer associated with one.

Fortunately, Section 512(h) has an important limitation that protects users.  Over two decades ago, several federal appeals courts ruled that Section 512(h) subpoenas cannot be issued to ISPs. Now, in In re Internet Subscribers of Cox Communications, LLC, the Ninth Circuit agreed, as EFF urged it to in our amicus brief.

As the Ninth Circuit held:

Because a § 512(a) service provider cannot remove or disable access to infringing content, it cannot receive a valid (c)(3)(A) notification, which is a prerequisite for a § 512(h) subpoena. We therefore conclude from the text of the DMCA that a § 512(h) subpoena cannot issue to a § 512(a) service provider as a matter of law.

This decision preserves the understanding of Section 512(h) that internet users, websites, and copyright holders have shared for decades. As EFF explained to the court in its amicus brief:

[This] ensures important procedural safeguards for internet users against a group of copyright holders who seek to monetize frequent litigation (or threats of litigation) by coercing settlements—copyright trolls. Affirming the district court and upholding the interpretation of the D.C. and Eighth Circuits will preserve this protection, while still allowing rightsholders the ability to find and sue infringers.

EFF applauds this decision. And because three federal appeals courts have all ruled the same way on this question—and none have disagreed—ISPs all over the country can feel confident about protecting their customers’ privacy by simply throwing improper DMCA 512(h) subpoenas in the trash.