Appeals Court Blocks Expedited Subpoenas to Identify Pirates

Photo Credit: Joshua Rawson-Harris

An appeals court blocks RIAA-led major labels and studios from using expedited subpoenas to identify internet users suspected of piracy.

On Friday, an appeals court blocked record labels and studios from using expedited subpoenas to identify internet users suspected of illegally downloading and sharing songs, movies, and TV shows online.

According to the 9th Circuit Court of Appeals, copyright holders cannot use the Digital Millennium Copyright Act to subpoena internet providers to provide the identities of users allegedly committing piracy. That’s a major blow for the Motion Picture Association and the Recording Industry Association of America, both of whom have warned that blocking such subpoenas will dampen efforts to ward off digital piracy.

“Piracy poses a significant threat to the creative marketplace and to the U.S. economy,” wrote the trade groups in an amicus brief last year. They added that DMCA subpoenas are “an effective, and often the only, practical means of identifying online copyright pirates.”

The DMCA allows copyright holders to obtain subpoenas without first filing a lawsuit or receiving a judge’s approval. But it has been argued that the process is subject to abuse by those who could use it to file thousands of lawsuits in an effort to seek a payoff, regardless of the ownership of the infringing material.

The 9th Circuit’s ruling seems to align with that stance. It also aligns with that of the D.C. Circuit and the 8th Circuit in 2003 and 2005, respectively. Those decisions have left copyright holders largely filing lawsuits against John Does rather than using the expedited DMCA process.

“This decision doesn’t prevent copyright holders from identifying online infringers,” said Victoria Noble, staff attorney at the Electronic Frontier Foundation. “It simply forecloses one mechanism for doing so that is particularly susceptible to abuse.”

Rights holders have argued that filing individual John Doe lawsuits is too cumbersome, but the three-judge panel was unconvinced. “We are sympathetic to this argument, but whether the DMCA provides a sufficient remedy for copyright holders to vindicate their rights against infringers using P2P networking is ultimately a question for Congress, not the courts,” wrote Judge Morgen Christen.

“I am hopeful that Congress or the Administration will adopt measures to help copyright owners deal with the scourge of online theft that is robbing them of millions of dollars and hurting America’s economy,” said Kerry Culpepper, an attorney representing production company Capstone Studios in the case against ISP Cox Communications. “Stopping online theft should be a priority.”