RIAA and MPA Urge Court Not to Disarm the DMCA Subpoena Anti-Piracy Tool

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

RIAA and MPA typically target third party services such as Cloudflare, domain name services, and social media platforms. These can be categorized in different ISP classes, but the groups are mostly concerned with the court’s interpretation of DMCA §512(d).

Too Broad

The brief notes that the district court simply had to answer whether a DMCA subpoena applies to Cox in this specific case. However, the court went further than that, interpreting DMCA §512(d) in a way that the RIAA and MPA disagree with.

Specifically, the court suggested that IP addresses may never function as links, within the context of the section 512(d) safe harbor. RIAA and MPA say this conclusion is wrong.

“The district court’s bright-line rule erroneously indicated that IP addresses never constitute ‘links’ within the meaning of section 512(d). The court’s conclusion was overbroad and unnecessary, and likely wrong..,” the brief reads.

From the brief..

The entertainment industry groups argue that section 512(d) services, which could cover reverse proxy providers such as Cloudflare, can link to pirate websites through IP-addresses.

“For example, many pirate websites utilize reverse-proxy services, which provide a server with a ‘proxy’ address (akin to an IP address) that then links to the pirate website’s own server. These services maintain an index or reference for the proxy, and parties engaged in illegal infringement use them to conceal the identities of the website operators.

“In fact, Congress specifically intended for an ‘information location tool’ under section 512(d) to include ‘a pointer that stands for an Internet location or address’,” the brief adds.

If the district court’s order stands, the validity of MPA and RIAA DMCA subpoenas may be in question. For this reason, the brief urges the court to limit its findings to the evidence at hand, without the contested and presumably unneeded IP-address interpretation.

Anti-Piracy Threat

The brief further notes that, contrary to the district court’s suggestion, ISPs can fall into multiple categories. In fact, Congress specifically highlighted that a service provider could qualify for multiple section 512 safe harbors.

In this case, the court concluded that Cox qualifies as a 512(a) provider. Therefore, it can’t also qualify as a 512(d) service. The RIAA and MPA disagree, and stress that the categories are not mutually exclusive.

In conclusion, the case deals with detailed and technical aspects of the DMCA, which can have far-reaching effects. Not only for the privacy of alleged pirates, but also for the RIAA and MPA’s future anti-piracy efforts.

“[T]he district court’s holding on section 512(d) could prevent copyright owners from issuing section 512(h) subpoenas against yet other kinds of intermediary services, such as reverse proxies and other registrar tools, that are now often the best or only sources of information about direct infringers of their works.

“The Court should limit its holding to the specific facts at issue in this case,” the brief concludes.

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A copy of the amicus curiae brief, filed at the Ninth Circuit Appeals Court by the RIAA and MPA, is available here (pdf)

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