So, just yesterday we had this story about Rightscorp successfully getting one part of a class action lawsuit against it dropped. Specifically, the court found that Rightscorp couldn’t be sued for abuse of process for trying to use DMCA subpoenas (512(h) subpoenas) to get information on the people it was intended to shakedown for money. As we’ve noted, such subpoenas have been rejected when the RIAA tried to use them to get info on Verizon subscribers, but here the court held that merely using them was not “abuse of process.” However, it still didn’t argue that using them was legitimate. So, it’s good to see that, in another Rightscorp case, a court had rejected the use of DMCA subpoenas. In that case, the ISP they were sent to, Cbeyond, refused to hand over the info, and the court sided with Cbeyond (who has since been acquired by Birch Communications). As in the RIAA/Verizon case, the court noted that 512(h) subpoenas are for stored content, not for transit providers like ISPs. The court cites that case, and then agrees with its findings (and others that have relied on the RIAA case), even if it’s in a different circuit.
The Court finds the opinions of the Courts of Appeals for the District of Columbia Circuit in RIAA and the Eighth Circuit majority in Charter persuasive and well-reasoned. The plain language of Section 512(h) requires, as a prerequisite to issuances of a subpoena, that a copyright owner must file a notice that complies with Section 512(c)(3)(A), including that identifies the allegedly infringing material to be removed or access to which must be disabled. CBeyond does not store or host on its servers the allegedly infringing material, and thus there is no allegedly infringing material to be removed or access to which must be disabled. Because Rightscorp therefore cannot satisfy the notice requirements of Section 512(c)(3)(A), a subpoena cannot be issued under Section 512(h).
The court, however, does not agree to Cbeyond/Birch’s request for sanctions, noting that since this particular issue hadn’t yet been litigated in this circuit (the 11th), it wasn’t “frivolous.” That’s fair enough, though, once again, it seems like Righscorp should know darn well about the RIAA v. Verizon ruling and others like it by now. And, yes, that’s not technically binding in other circuits, but the reasoning is completely sound.
So, while Rightscorp may have been briefly celebrating in getting the “abuse of process” claim tossed out, it’s still a pretty fruitless endeavor as now it is learning first hand that DMCA subpoenas cannot be used the way that Rightscorp wants to use them.