filesharing – Attorney Evan Brown

February 12, 2024 Copyright, DMCA, Litigation

DMCA subpoena to “mere conduit” ISP was improper

DMCA defamatory

Because ISP acted as a conduit for the transmission of material that allegedly infringed copyright, it fell under the DMCA safe harbor in 17 U.S.C. § 512(a), and therefore § 512(h) did not authorize the subpoena issued in the case.

Some copyright owners needed to find out who was anonymously infringing their works, so they issued a subpoena to the users’ internet service provider (Cox Communications) under the Digital Millennium Copyright Act’s (“DMCA”) at 17 U.S.C. § 512(h). After the ISP notified one of the anonymous users – referred to as John Doe in the case – of the subpoena, Doe filed a motion to quash. The magistrate judge recommended the subpoena be quashed, and the district judge accepted such recommendation.

Contours of the Safe Harbor

The court explained how the DMCA enables copyright owners to send subpoenas for the identification of alleged infringers, contingent upon providing a notification that meets specific criteria outlined in the DMCA. However, the DMCA also establishes safe harbors for Internet Service Providers (ISPs), notably exempting those acting as “mere conduits” of information, like in peer-to-peer (P2P) filesharing, from liability and thus from the obligations of the notice and takedown provisions found in other parts of the DMCA. This distinction has led courts, including the Eighth and D.C. Circuits, to conclude that subpoenas under § 512(h) cannot be used to compel ISPs, which do not store or directly handle the infringing material but merely transmit it, to reveal the identities of P2P infringers.

Who is in?

The copyright owners raised a number of objections to quashing the subpoena. Their primary concerns were with the court’s interpretation of the ISP’s role as merely a “conduit” in the alleged infringement, arguing that the ISP’s assignment of IP addresses constituted a form of linking to infringing material, thus meeting the DMCA’s notice requirements. They also disputed the court’s conclusion that the material in question could not be removed or access disabled by the ISP due to its nature of transmission, and they took issue with certain factual conclusions drawn without input from the parties involved. Additionally, the petitioners objected to the directive to return or destroy any information obtained through the subpoena, requesting that such measures apply only to the information related to the specific subscriber John Doe.

Conduits are.

Notwithstanding these various arguments, the court upheld the magistrate judge’s recommendation, agreeing that the subpoena issued to the ISP was invalid due to non-compliance with the notice provisions required by 17 U.S.C. § 512(c)(3)(A). The petitioners’ arguments, suggesting that the ISP’s assignment of IP addresses to users constituted a form of linking to infringing material under § 512(d), were rejected. The court clarified that in the context of P2P file sharing, IP addresses do not serve as “information location tools” as defined under § 512(d) and that the ISP’s role was limited to providing internet connectivity, aligning with the “mere conduit” provision under § 512(a). The court also dismissed the petitioners’ suggestion that the ISP could disable access to infringing material by null routing, emphasizing the distinction between disabling access to material and terminating a subscriber’s account, with the latter being a more severe action than what the DMCA authorizes. The court suggested that the petitioners could pursue the infringer’s identity through other legal avenues, such as a John Doe lawsuit, despite potential challenges highlighted by the petitioners.

In re: Subpoena of Internet Subscribers of Cox Communications, LLC and Coxcom LLC, 2024 WL 341069 (D. Hawaii, January 30, 2024)

December 4, 2010 Copyright

Another massive porn Bittorrent copyright lawsuit in the Northern District of Illinois

MCGIP, LLC v. Does 1-1,164, No. 10-7675 (N.D.Ill., filed December 2, 2010) [Download Complaint]

Filing of copyright infringement complaint will be precursor to more subpoenas seeking to identify unknown file-sharing defendants.

Another porn company has filed a copyright lawsuit against hundreds of anonymous John Doe defendants who allegedly used the Bittorrent protocol to trade plaintiffs’ copyrighted movies. So ISPs around the country should expect another wave of subpoenas sent to unmask these unknown file sharers. The works allegedly infringed in this case include provocative titles such as “Girlfriend Lost a Bet” and “Iraq Care Package.”

Interestingly, this complaint — unlike the complaints in similar Bittorrent porn copyright cases — contains a paragraph that tries to explain why over a thousand defendants should be joined in one lawsuit:

Joinder is appropriate because, on information and belief, each Defendant was contemporaneously engaged in a coordinated effort with the other Defendants to reproduce and distribute Plaintiff’s copyrighted works to each other and hundreds of third parties via the BitTorrent protocol.

This language appears to be an attempt to head-off arguments like those made by EFF and others in some of the other massive copyright infringement actions against scores of anonymous defendants.

Distribution under the Copyright Act requires more than merely making copies available

Atlantic Records v. Howell, No. 06-2076 (D. Az. April 29, 2008)

Several record companies, including Atlantic Records, sued Pamela and Jeffrey Howell after the record companies learned, through their private investigator, that the Howells used KaZaA to share files. After discovery in the matter closed, the record companies moved for summary judgment, asserting that the Howells infringed the copyright in the sound recordings merely by making them available for the public to copy. The court found in favor of the Howells and denied the motion.

The Copyright Act provides that an owner of a copyright enjoys certain exclusive rights in connection with the work including, among other things, the exclusive right to distribute copies of the work. The record companies case was a bit problematic on this point, as the only evidence of record was that the allegedly infringed files were in KaZaA’s shared folder. There was no indication that actual copies of the files had been transferred.

In support of the argument that making the sound recordings available was an unauthorized distribution, the record companies relied heavily on Hotaling v. Church of Jesus Christ of Latter-Day Saints, 188 F.3d 199 (4th Cir. 1997). In Hotaling, the court held that a library which created a number of unauthorized copies of a work and made those copies available in its various branches could be liable for infringement, despite the absence of evidence that any member of the public had viewed the unauthorized copies.

The Hotaling decision was based largely on policy grounds. The library kept no records of who had viewed the unauthorized copies, thus the plaintiff could not provide direct evidence that the works were distributed to the public. The court opined it would be against sound policy for defendants to avoid liability through the omission of record keeping.

The court in this case rejected and criticized the Hotaling decision, holding that evidence of making a copy available “only shows that [a] defendant attempted to distribute the copy, and there is no basis for attempt liability in the statute, no matter how desirable such liability may be as a matter of policy.”

The recording companies argued that although the term “distribution” is not explicitly defined in the Copyright Act, it is synonymous with the term “publication,” which the statute defines to include “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. In other words, if the Howells offered to distribute the copyrighted works to the public for purposes of further distribution, they distributed the works within the meaning of the Copyright Act.

But the court looked to the plain meaning of statutory provision granting an exclusive right to distribute, which requires an identifiable copy of the work to change hands in one of a number of prescribed ways (e.g., sale or lease) for there to be a distribution. The court found it untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of “distribution” and liability to include offers to distribute.