The DMCA online safe harbor is a notice-and-takedown scheme. Web hosts aren’t liable for copyright-infringing third-party uploads unless and until the copyright owner submits a proper takedown notice to the host, at which point the web host can remain legally protected by expeditiously removing the targeted item. By taking web hosts out of the liability chain, the DMCA nominally keeps any infringement disputes being between the uploader and the copyright owner.
To help copyright owners sue anonymous or pseudonymous uploaders, the DMCA provides a procedural fast lane to expedite infringer identifications. 512(h) says that copyright owners can request unmasking subpoeanas of allegedly infringing uploaders simply by requesting the subpoena from a court clerk, rather than pursuing the more time-consuming and expensive process of suing a John Doe and then asking the judge for a subpoena. 512(h) is an artifact of a different time. Knowing what we know now, 512(h) raises obvious concerns about copyright owner ,misuse and uploader privacy risks.
The DMCA handles Internet access providers (IAPs) differently because they don’t “host” any content. As the court says, “a § 512(a) service provider cannot participate in the notice and takedown process, because there is nothing for a § 512(a) service provider to take down.”
Instead, 512(a) provides IAPs with a blanket immunity from copyright infringement when acting in their roles as IAPs, with a huge caveat. The DMCA still requires IAPs to “terminate repeat infringers” to remain eligible for the DMCA safe harbor, which IAPs don’t want to do. They don’t want to lose paying customers, but also, termination of an IAP’s account is materially different than termination of a web hosting account. Losing hosting services kicks the uploader off part of the Internet–bad enough–but losing Internet access kicks the uploader off the entire Internet. That may be a consequence disproportionate to the legal violation, especially when imposed without court supervision or any due process. The Supreme Court will review the interplay between copyright owner takedown notices and IAPs’ liability for uploader-caused copyright infringement in the pending Cox v. Sony case.
Today’s case involves users of BitTorrent. BitTorrent doesn’t conform to the standard DMCA paradigm because it splits the hosting of an allegedly infringing file across a wide number of users, so a 512(c)(3) takedown notice to a BitTorrent “host” doesn’t redress any infringement. As a result, copyright owners have pressured IAPs to act as their copyright cops, including terminating subscribers who repeatedly use BitTorrent.
In addition, copyright owners have requested 512(h) subpoenas from IAPs to identify and sue alleged subscriber-infringers. In this case, a copyright owner requested and obtained (just by asking the court clerk) a 512(h) subpoena to unmask 29 Cox users who allegedly participated in the infringement of the movie Fall. Cox notified the 29 users that their identity would be unmasked; 28 didn’t respond. (Cox didn’t have to give this notice to users; it could have simply forked over the requested information straightaway). One user did object to the 512(h) subpoena in court (he claims any alleged infringement was because he left his wi-fi router open without password protection), and that leads to this Ninth Circuit opinion.
The court says that copyright owners can never send proper 512(c)(3) takedown notices to IAPs because the 512(c)(3) notices must specify the location of the item that it wants taken down–an impossibility if the IAP isn’t hosting the item:
[an IAP] cannot “remove” or “disable access to” any infringing content those subscribers might share, because there is nothing for the § 512(a) service provider to remove. Without the ability to provide a valid (c)(3)(A) notification to § 512(a) service providers, copyright holders cannot satisfy the requirements for issuance of a § 512(h) subpoena….[the] statutory text confirms that a § 512(a) service provider is not a contemplated recipient of a proper (c)(3)(A) notification. For these reasons, the DMCA does not permit a § 512(h) subpoena to issue to a § 512(a) service provider.
This is not a new conclusion. The DC Circuit (the Verizon case) and Eighth Circuit (the Charter case) reached the same conclusion 20 years ago.
[Note: this raise the obvious question–why are copyright owners still making 512(h) requests that multiple appellate courts declared illegitimate a generation ago? You and I both know the answers: (1) most IAPs honor the 512(h) subpoenas, and (2) copyright owners relentlessly undermine every aspect of the DMCA statute.]
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