Internet Access Providers Aren't Bound by DMCA Unmasking Subpoenas–In Re Cox

Summary

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 with...