IP Law Daily, COPYRIGHT—9th Cir.: Cox Internet is not subject to DMCA subpoenas, (Aug 18, 2025)

By Matthew Hersh, J.D.

The expedited subpoena procedure is applicable only to ISPs that store or link to infringing material, not those who provide a mere conduit to the internet.

An ISP that connects its users to the internet cannot be subject to an expedited subpoena procedure designed to identify its users that are sharing copyrighted material over peer-to-peer networks because it “merely provided its users with an Internet connection and played no other role in the alleged infringement,” the U.S. Court of Appeals for the Ninth Circuit has held. The court, in joining with decades-old precedent from two other circuits, emphasized that the expedited subpoena process could be targeted only against those service providers that store or link to content on the web and not to those that act as a mere “conduit” for its users (In re Subpoena of Internet Subscribers Of Cox Communications, LLC, No. 24-3978 (9th Cir. Aug. 15, 2025)).

The dispute arose when Capstone Studios discovered that the IP addresses of 29 Cox Internet subscribers appeared to be distributing pirated copies of Capstone’s 2022 thriller Fall through the popular peer-to-peer service BitTorrent. Capstone sought to obtain the identity of those subscribers by serving upon Cox a set of subpoenas under the expedited subpoena procedure of Section 512(h) of the Digital Millennium Copyright Act, 17 U.S.C. § 512(f). Cox turned over the identity of 28 of the subscribers, but the 29th objected, writing anonymously to the district court to explain that he had forgotten to add a password to his Wi-Fi router, leaving his network open for anyone to use.

The district court, treating the anonymous subscriber’s letter as a motion to quash, granted the motion and refused to enforce the subpoena. Capstone appealed, leading to this opinion.

Interpretation of § 512(h). The court of appeals affirmed the judgment of the district court. The dispute arises out of the often-delicate balance embodied in the Digital Millennium Copyright Act, enacted in 1998 and codified at 17 U.S.C. § 512. Sections 512(a)-(d), the core of the Act, are the four safe harbor provisions. The first, § 512(a), provides that an internet service provider cannot be held liable for copyright merely because of their “transmitting, routing, or providing connections for” material through the internet. The safe harbors in § 512(b) through (d), meanwhile, apply to ISPs that, respectively, perform system caching, provide online storage, and provide web search functions.

Balanced against these safe harbor provisions, however, are a number of conditions and limitations that favor copyright holders. Under § 512(i), for example, ISPs are only eligible for the safe harbor if they adopt a policy to terminate subscribers who are repeat copyright infringers. Sections 512(b)-(d), meanwhile, require that ISPs who cache, store, or link to content on the internet have in place a mechanism to “remove, or disable access to” content in response to takedown requests from copyright holders. Finally, and central to this case, § 512(h) allows copyright holders to direct subpoenas at ISPs in order to obtain the identity of allegedly infringing users—something that copyright holders could otherwise only do if they filed a “John Doe” lawsuit directly against the anonymous holder.

The question in this case was the interplay between the safe harbor provisions of Sections (a)-(d) and the expedited subpoena provision of § 512(h). Nothing in the subpoena provision expressly limits the subpoena to ISPs who qualify for one type of safe harbor provision versus another. But in Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003) and In re Charter Communications, Inc., Subpoena Enf't Matter, 393 F.3d 771 (8th Cir. 2005), two appellate courts construed the statute to impose such a limitation. Thoe appellate courts—later joined by a number of district courts in other circuits—read the statute to allow for expedited subpoenas only against those ISPs that cache, store, or link to allegedly infringing content. By contrast, ISPs that merely provide users with a conduit to the internet, under these appellate decisions, were not required to respond to Section 512(h) subpoenas. (Disclosure: The author was part of the briefing team in both of these cases).

Did the D.C. and Eight Circuits get it right? The district court in this case found that they did, and the court of appeals agreed.

The district court got it right, the court of appeals found, because the § 512(a) safe harbor, applicable to ISPs like Cox, is “materially different from the other primary safe harbors.” Under § 512(h), a copyright holder seeking a subpoena must provide a takedown notice that includes, among other things, identification of the allegedly infringing material “that is to be removed or access to which is to be disabled” as well as “information reasonably sufficient to permit the service provider to locate the material.” But only an ISP that stores or links to material, the court noted, can “remove,” “disable access to,” or “locate” that material. An ISP that merely provides a conduit from its users to the internet, by contrast, can do none of those things. “Such a provider cannot ‘remove’ or ‘disable access to’ any infringing content those subscribers might share because there is nothing for the § 512(a) service provider to remove,” the court observed.

Nor did it matter, the court noted, that an ISP could prevent its own users from exchanging allegedly infringing material over the internet. Capstone pointed out that service providers like Cox can use technologies known as “port blocking” or “null routing” to prevent its subscribers from reaching the BitTorrent service—thereby preventing users from trading in infringing materials without having to completely terminate those subscribers’ accounts. But that did not matter, the court noted, because “an ISP cannot ‘disable access’ to infringing material via port blocking or destination null routing; it can only disable its subscribers’ access to infringing material.” Capstone pointed to nothing in the text or legislative history of Section 512, the court emphasized, “suggesting that Congress contemplated such a piecemeal application of the notice and takedown procedure.”

Nor would practical considerations help Capstone in this case. Capstone argued that the alternative to a § 512(h) subpoena—filing John Doe lawsuits against thousands of subscribers—was an unworkable means of policing P2P infringers. “We are sympathetic to this argument,” the court noted, “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.”

Application of the safe harbor to Cox. The court of appeals also concluded that the district court got it right in applying the safe harbor to Cox. Capstone argued that in addition to acting as a § 512(a) service provider, Cox also acted as a § 512(d) service provider with respect to the infringement at issue because it assigned IP addresses to its subscribers and, by connecting those IP addresses to the Internet, it “referred or linked those users to online locations that contained infringing material or material subject to infringing activity.” But this argument was defeated by “a basic understanding of IP addresses and P2P networking,” the court found. “Connecting a user to the Internet and assigning the user an IP address does not ‘link’ or ‘refer the user anywhere, much less to a particular location containing infringing material,” the court noted. Because Cox’s role in the alleged infringement was limited to that of a § 512(a) ISP, and because a § 512(h) subpoena cannot issue as a matter of law to a § 512(a) service provider, the court concluded, “Capstone’s subpoena was invalid and the district court did not abuse its discretion when it quashed the subpoena.”

The Case is No. 24-3978.

Judge: Christen, M.

Attorneys: Kerry S. Culpepper (Culpepper IP PLLC) for Capstone Studios Corp., Millennium Funding, Inc. and Voltage Holdings, LLC. Christopher J. Cariello (Orrick Herrington & Sutcliffe LLP) for CoxCom LLC and Cox Communications, LLC.

Companies: Capstone Studios Corp.; Millennium Funding, Inc.; Voltage Holdings, LLC; CoxCom LLC; Cox Communications, LLC

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