A subpoena enforcement action in the Ninth Circuit concerned the movie studio Capstone Pictures’ DMCA claim against internet service provider Cox Communications. Capstone alleged that Cox violated the Digital Millennium Copyright Act (“DMCA”) by not suspending the accounts of users who were downloading and sharing its movie Fall.
At issue was section 512 (“512”) of the DMCA, which establishes “safe harbors” that shield internet service providers (“ISPs”) and other entities from copyright infringement lawsuits stemming from their users’ infringement. The subsections of 512 spell out the different safe harbors according to the role that the ISP played in the infringement.
- Subsection (a) protects a “service provider,” which is defined elsewhere as “an entity offering the transmission, routing, or providing of connections for digital online communications, …, without modification to the content of the material as sent or received….[Generally,] a provider of online services or network access.”
- Subsection (h) provides statutory requirements for obtaining expedited subpoenas against infringers.
The district court had found that Cox qualified as an ISP under subsection (a) and quashed Capstone’s subpoena that the court clerk had issued under subsection (h). The district court read the plain text of Section 512 and concluded that subsection (h) subpoenas cannot be issued to subsection (a) ISPs as a matter of law.
The Ninth Circuit affirmed the district court’s decision. It found that under subsection (a) ISPs cannot be issued a take-down notice because subsection (h) requires that a DMCA take-down notice be sent before issuing a subpoena. Unlike subsections (b), (c ) and (d), subsection (a) does not provide for any takedown notices. The court pointed out that the statutory distinction makes sense: ISPs, as mere conduits, are unable to remove or disable access to any infringing content as subsection (h) requires. This, the court said, meant that Cox is not subject to subsection (h) subpoenas.
Capstone showed some creativity by arguing that there are two ways that a service provider could disable access to the infringing material: 1) by destination and 2) by “port blocking.” The destination method prevents a user from reaching a specific destination, or IP address. Ports are the numbered and standardized means of segregating between different kinds of traffic. Infringing activities typically use specified ports, so Capstone argued that an ISP could block those ports for a particular user without terminating the rest of the user’s access.
In response, the Ninth Circuit said that the DMCA didn’t define what it means to “disable access.” But a subscriber’s accessing of pirated material is not a reason why a subscriber should not be allowed to have any internet access. The court went on to say that this provision was intended to be something that impacts on the infringing material, not on the user of the internet, which was a different theory than what Capstone was seeking. Moreover, there was no indication Congress intended to have such a vast, piecemeal means of enforcing copyright.
Capstone argued that Cox does in fact provide storage for users’ potentially infringing content. The court responded to this by saying the issue wasn’t a matter of what Cox is capable of doing, it was a matter of what Cox did in this instance. Here, all it did was serve as an ISP through which infringing subscribers used a peer-to-peer method for sharing information. That, the court said, was strictly subject to subsection (a).
So why is this case significant? It’s one more instance of not being able to enforce copyright protection, even through the relatively creaky mechanism of the DMCA. The DMCA was a legislative attempt to keep up with changes in technology, but with the challenges of much faster, generative and adaptive measures of making content, it’s likely to be even harder for a content owner to enforce its copyright protections.
