In the past two years, Rightscorp, Inc. has sought the identity of thousands of Internet subscribers across the country, in order to obtain settlements for alleged violations of its clients’ copyrights. In its campaign, Rightscorp primarily relies upon subpoenas issued pursuant to 17 U.S.C. § 512(h) of the Digital Millennium Copyright Act (“DMCA”). Section 512(h) allows a copyright holder, or a person authorized to act on its behalf, to request that a subpoena be issued to a “service provider” to identify an “alleged infringer.” The request is made in a “miscellaneous case” in federal district court, and the subpoenas are issued by the Clerk of the Court, not a District Judge. Rightscorp has filed approximately 150 Section 512(h) actions in 2014 and 2015.
Rightscorp’s approach is inconsistent with decisions of the U.S. Courts of Appeal from the Eighth and District of Columbia Circuits, which state that an Internet service provider (“ISP”) acting as a conduit (i.e., simply providing Internet service) is not subject to the provisions of Section 512(h). When challenged based on these authorities, Rightscorp has either withdrawn or lost.
By virtue of the large scale, Rightscorp has had some success in obtaining names and sending out demands. But other problems have surfaced, including two now-pending federal class action lawsuits in California and Georgia alleging violations of federal debt collection and communications laws by Rightscorp in connection with its pursuit of settlements from individuals.
Despite judicial disapproval of a key element of Rightscorp’s business model (i.e., the use of Section 512(h)) and class action lawsuits, two of the copyright holders that rely on Rightscorp’s services are suing an ISP. The suit alleges that the ISP (which refused to provide Rightscorp with personally identifiable information about subscribers) cannot rely on DMCA immunity and should be liable for contributory and vicarious copyright infringement.
Although no one would seriously disagree that something should be done about online copyright piracy, the existence of a problem is not an excuse to circumvent the law or to disregard appropriate procedures for obtaining personal information of Internet subscribers. Accusations by a private entity of copyright infringement are just that. Adjudications are still appropriately left to the courts.