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ISP That Doesn’t Store or Link to Pirated Film Is Not Subject to Subpoena—Ninth Circuit
Panel: Santa Monica Movie Production Company Can’t Gain Access to List of Cox Cable Subscribers Suspected of Possessing Infringing Matter
By a MetNews Staff Writer
A San Diego movie production company yesterday lost its bid in the Ninth U.S. Circuit Court of Appeals for a resuscitation of a subpoena, quashed by a District Court, to obtain from Cox Communications—the third-largest cable television provider in the nation—the names of 29 subscribers who are suspected by the plaintiff of being in possession of pirated copies of its 2022 movie, “Fall.”
Under 17 U.S.C. §512), a part of the Digital Millennium Copyright Act (“DMCA”), Circuit Judge Morgan Christen wrote, plaintiff Capstone Studios Corp. is not entitled to obtain the information from Cox because the statute provides that an Internet service provider (“ISP”) must, upon notification of an infringement, act “expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement.”
Cox has no power to do that with respect to videos residing on the computers of its subscribers, she noted.
Capstone is holder of the copyright on “Fall.” Its subsidiary Capstone Pictures was one of the production companies for the psychological thriller film which grossed $21 million.
Copies of “Fall” were obtained by the subscribers not from Cox but via BitTorrent which entails users sharing data. Capstone detected more than 35 IP addresses of Cox subscribers “where infringement was confirmed.”
It sought the identities of the subscribers. Cox sent a notice to the persons and one, “John Doe,” objected, saying:
“We erroneously forgot to add a password to our Wi-Fi and found out our internet service was open for anyone to use.”
He asked the District Court to quash the subpoena.
Capstone’s Argument
After a magistrate judge in Hawaii did so, Capstone appealed, saying in its opening brief:
“Capstone and its business partners invested financial resources, time and effort in making and marketing the motion picture based upon the expectation that they would get a return on their investment from rentals and sales….
“Cox is a provider of Internet service to residential and business subscribers including Respondent John Doe….Massive ongoing piracy of Fall by Internet users such as Cox’s on BitTorrent protocol peer-to-peer networks hinders Capstone’s opportunity to get a return on its investments.”
Christen’s Opinion
Christen wrote that under the DMCA, if an ISP stores infringing material, “that service provider has the ability to remove the material from its system or network (or otherwise disable access to it)” or, if it provides a link to such matter. it “can disable access to the infringing material by removing or disabling its directory or hyperlink that links the user to the infringing content.”
Otherwise—if the ISP merely acts as conduit for communications by others—the ISP “cannot participate in the notice and takedown process, because there is nothing…to take down,” she said. Such an ISP, the judge noted, enjoys immunity under §512(a) and a subpoena to it is invalid.
“Below and on appeal, the parties agreed that Cox did nothing more than assign IP addresses and provide an Internet connection to its 29 subscribers who allegedly engaged in copyright infringement,” Christen recited, declaring:
“Because Cox’s role in the alleged infringement was limited to that of a § 512(a) ISP, and because a…subpoena cannot issue as a matter of law to a § 512(a) service provider, Capstone’s subpoena was invalid and the district court did not abuse its discretion when it quashed the subpoena.”
The case is In re: Subpoena of Internet Subscribers of Cox Communications, LLC and Coxcom, LLC, 24-3978.
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