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US court ruling hinders copyright owners file-sharer letter sending beyond the Copyright Alert System

By | Published on Wednesday 4 February 2015

Warning Letter

Attempts by US copyright owners to send warning letters to file-sharers using internet service providers which are not part of the country’s Copyright Alert System have been hindered this week by a court ruling in Georgia on the remit of subpoenas issued under America’s Digital Millennium Copyright Act.

As previously reported, Stateside, where the anti-piracy tactic now preferred by record labels and movie studios in many European countries – web-blocking – is not currently an option, there has been a big programme of letter-sending by copyright owners to suspected file-sharers.

Most of the big ISPs are part of the voluntary Copyright Alert System, and under that scheme agree to forward warning letters to suspected copyright infringers when provided by a copyright owner with the IP address where file-sharing activity has been spotted.

But not all ISPs are part of the scheme. Late last year BMG and Round Hill Music sued the one big net firm which doesn’t participate – Cox Communications – while for smaller ISPs the rights owners, or more commonly their reps in this domain, especially the company Rightscorp, subpoenas the net companies demanding the names and addresses of suspected infringers, and then they send their warning letters direct.

Some of those warning letters have been criticised because – as well as telling users that their file-sharing of unlicensed content has been spotted and is against the law – they also often demand a cash payment be made to avoid legal action. Although these cash payments are not significant, some argue that companies like Rightscorp have turned piracy letter sending into a standalone business.

And in Canada – where a statutory alert system recently launched – Rightscorp has been further slated for making threats about what damages might be due if the matter went to court based on American rather than Canadian law (the potential damages being much higher in the former).

Nevertheless, some of the smaller ISPs that have received subpoenas from copyright reps have complied with the demand for the contact information of suspected files-sharers. But not all of them, and a company called CBeyond went to court on the matter. And this week they won.

The key issue is that Rightscorp has been using a kind of subpoena that is enabled by the DMCA, which is an efficient way of doing things because that specific order for information can be approved by a court clerk, without every application going before a judge. So it’s much more speedy.

But CBeyond argued that DMCA subpoenas, because they are in essence fast-tracked, are limited to specific kinds of alleged copyright infringement, and are not meant to be used for people accused of simply accessing unlicensed sources of content. Basically the target of any action must be accused of actually hosting unlicensed content on their server, so in file-sharing terms, they must be uploading as well as downloading files.

Which doesn’t necessarily mean that someone just accessing files – or, indeed, simply linking to unlicensed content – wouldn’t be liable for copyright infringement in court, but rights owners can’t used these fast-track DMCA subpoenas to get said downloaders or linkers into court in the first place.

According to Torrentfreak, Rightscorp argued that that unfairly hindered rights owners who sought to protect their copyrights, and that the anti-piracy work it does is exactly the sort of thing the DMCA should be simplifying. But the judge hearing the case said, while that may be a credible argument, that’s not what the DMCA, as currently worded, allows, and it was for Congress to amend the rules if they weren’t working.

Said the judge: “It is the province of Congress, not the courts, to decide whether to rewrite the DMCA in order to make it fit a new and unforeseen internet architecture and accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology”.

Rightscorp is expected to appeal.