The RIAA and MPA are concerned about a recent court ruling that could hinder their ability to combat online piracy using DMCA subpoenas. The court's decision suggests that IP addresses may not be considered "links", potentially limiting the scope of these subpoenas. This interpretation could impact the music and film industries' efforts to identify and take action against infringers and operators of piracy services.

Tackling online piracy is a complicated endeavor that often starts by identifying the operators of infringing sites and services. This is also where the first hurdles show up.

Many pirates keep their identities concealed. This applies to the operators of sites and services as well as their users.

This relative anonymity is a nuisance to anti-piracy groups, including the RIAA and MPA. While most online services refuse to voluntarily hand over user details, there are some legal tools that can help rightsholders move forward.

In recent years, DMCA subpoenas have established themselves as a key anti-piracy enforcement tool. These requests don’t require any oversight from a judge and are typically signed off by a court clerk. This makes them ideal to swiftly identify online pirates.

DMCA Subpoenas at Risk

Both the RIAA and MPA have used these subpoenas to identify owners of pirate sites, as well as individual infringers. The groups would like DMCA subpoenas to remain in their toolbox, but they fear that their effectiveness may be hindered by a recent court order.

The case in point doesn’t involve the RIAA or MPA. Instead, it’s a dispute between several independent film companies and Internet provider Cox. The latter successfully objected to a DMCA subpoena which sought identifying information of several alleged BitTorrent pirates.

The main contention in this case is whether DMCA subpoenas apply to residential Internet providers. Cox argued that they don’t, describing itself as a mere conduit provider benefiting from DMCA’s §512(a) safe harbor, which does not require ISPs to take anything down, because the ISP doesn’t store content.

For background, a brief summary of the four types of ISPs under 17 U.S.C. § 512.

– §512(a): transitory digital network communications; services that merely pass on bits and bytes
– §512(b): system caching; services that temporarily store (cache) data
– §512(c): storage of information on systems; services that host data
– §512(d): information location tools; services that connect users to online locations (e.g. social media, search engines)

Earlier this year, a magistrate judge followed Cox in this reasoning and recommended quashing the subpoena. The court concluded that DMCA subpoenas typically don’t apply to DMCA §512(a) services, but do apply to other providers that store or link to infringing content directly.

The filmmakers didn’t give up, however, and filed a motion for reconsideration. They argued that Cox also falls under DMCA §512(d), as it can remove or disable ‘references or links’ to infringing content. Therefore, a DMCA subpoena should be valid for Cox.

RIAA and MPA Intervene

The motion for reconsideration didn’t help. The district court maintained that section §512(d) doesn’t apply to the ISP. This prompted the filmmakers to file an appeal last month. While this case has yet to get started, it has already attracted the interest of two anti-piracy heavyweights.

The MPA and RIAA joined the action by filing an amicus brief in support of neither party. Instead, they are wary of dangerous precedents as DMCA subpoenas are vital to their anti-piracy efforts.

“Section 512(h) subpoenas are particularly important for combating piracy given the anonymity the internet otherwise provides to infringing sites. Section 512(h) subpoenas are an effective, and often the only, practical means of identifying online copyright pirates,” they write.

“For example, infringing sites utilize reverse-proxy services and content-delivery networks to mask their IP address and the hosting provider of their website,” the brief adds.

Amicus Curiae