District Court Holds Passive ISP Not Subject to DMCA Subpoena | Practical Law

District Court Holds Passive ISP Not Subject to DMCA Subpoena | Practical Law

In In re Subpoena Issued to Birch Communications, Inc., the US District Court for the Northern District of Georgia granted a motion to quash a subpoena against an internet service provider (ISP) that enabled users to transfer allegedly infringing materials but did not store or host those materials on its servers. The court held that the ISP, as a mere conduit, was not within the scope of the subpoena power of § 512 of the Copyright Act as enacted under the Digital Millennium Rights Act.

District Court Holds Passive ISP Not Subject to DMCA Subpoena

Practical Law Legal Update 2-613-3045 (Approx. 4 pages)

District Court Holds Passive ISP Not Subject to DMCA Subpoena

by Practical Law Intellectual Property & Technology
Published on 18 May 2015 • USA (National/Federal)
In In re Subpoena Issued to Birch Communications, Inc., the US District Court for the Northern District of Georgia granted a motion to quash a subpoena against an internet service provider (ISP) that enabled users to transfer allegedly infringing materials but did not store or host those materials on its servers. The court held that the ISP, as a mere conduit, was not within the scope of the subpoena power of § 512 of the Copyright Act as enacted under the Digital Millennium Rights Act.
On May 5, 2015, in In re Subpoena Issued to Birch Communications, Inc., the US District Court for the Northern District of Georgia adopted a Magistrate Judge's order granting internet service provider (ISP) CBeyond Communications, LLC's motion to quash a subpoena issued under the Digital Millennium Rights Act (DMCA) by the US District Court for the Central District of California to Rightscorp, Inc., a representative of various sound recording copyright owners (No. 1:14-cv-3904-WSD, (N.D. Ga. 2015)). The court held that, because CBeyond did not store or host the allegedly infringing recordings on its servers and was only a mere conduit for their transmission, CBeyond was not within the scope of the subpoena power of § 512(h) of the Copyright Act as enacted and amended under the DMCA (17 U.S.C. § 512(h)).
The subpoena:
  • Contained a list of internet protocol (IP) addresses of users of CBeyond's ISP services who, Rightscorp alleged, used the services to unlawfully transfer copyrighted sound recordings.
  • Sought the names and contact information of those users.
CBeyond filed a motion in the Northern District of Georgia to quash the subpoena, which was granted in an order issued by a Magistrate Judge. Rightscorp appealed.
On appeal, the parties contested whether the Magistrate Judge's order should be given any deference under the appropriate standard of review. The district court ruled that CBeyond's motion to quash the DMCA subpoena was a dispositive motion and therefore beyond the scope of the Magistrate Judge's decisional authority. On the basis of this ruling, the court deemed the Magistrate Judge's order a Report and Recommendation and conducted a full de novo review of the record.
Turning to the merits of the case, the court looked to the record and, citing the plain language and structure of the DMCA, reasoned that:
  • A movant for a DMCA subpoena under § 512(h) must satisfy the notice provisions of § 512(c)(3)(A), which require the movant to identify the material it seeks to be removed from or disabled from access on the ISP's site.
  • § 512(c)(3)(A) is a subsection of one of the DMCA's four safe harbor provisions, each of which is directed to a different type of ISP:
    • ISPs that allow information to pass through their systems (§ 512(a));
    • ISPs that temporarily store data before passing it on (§ 512(b));
    • ISPs that allow users to store data on the system or network (§ 512(c)); and
    • ISPs that maintain data on their network or system (§ 512(d)).
  • The § 512 subpoena notice requirements are set out in § 512(c) but are also referred to in §§ 512(b) and 512(d) and therefore apply to each of the ISP types governed by those sections.
  • In contrast, § 512(a) neither refers to the statutory notice requirements nor includes any provision for the removal of or disabling of access to allegedly infringing material, because it applies only where an ISP does not store or host this material (and is therefore unable to remove or disable access to it).
  • Because CBeyond did not store or host the allegedly infringing materials, Rightscorp could not and did not identify those materials for removal or disabling in its § 512(c)(3)(A) notice.
  • As a result, Rightscorp's notice to CBeyond was necessarily and in fact deficient under § 512(c)(3)(A), under which proper notice is prerequisite to the issuance of a § 512(h) subpoena. Rightscorp's subpoena was therefore invalid.
The court noted that the issue before it is one of first impression in the circuit in which it sits, the US Court of Appeals for the Eleventh Circuit. However, the court found persuasive the analysis offered by the US Courts of Appeals for the Eighth Circuit and the D.C. Circuit, both of which had held that § 512(h) does not authorize the issuance of a subpoena to a § 512(a) ISP because the plain language and structure of § 512 unambiguously links the subpoena power of § 512(h) only to the storage function of the ISPs referenced in § 512(b)-(d). The court adopted this construction of the statute, ruling that, in light of its plain language, an examination of the legislative history of § 512 was neither necessary nor proper.
The court therefore adopted the Magistrate Judge's recommendation and granted CBeyond's motion to quash.