And Then… Court Rejects Rightscorp's Bogus DMCA Subpoena Argument

from the getting-there... dept

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.

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Companies: birch communications, cbeyond, rightscorp

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Comments on “And Then… Court Rejects Rightscorp's Bogus DMCA Subpoena Argument”

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Anon E. Mous (profile) says:

Rightscorp knew of the ruling in the District of Columbia before either of these cases took place and knew that in that ruling the court forbid the RIAA to get a subpoena for ISP subscriber information.

Rightscorp Robert Steele has flat out said that Rightscorp disagreed with the District Of Columbia’s ruling and they have flaunted ever since then to be able to get ISP subscriber information to entail their settlement/extortion letters for cash.

Does anyone really believe that Rightscorp is going to stop sending out letters and that they are actually going to go to court with evidence submitted to get a court to grant them ISP subscriber information? I doubt it.

It would cost Rightscorp a minimum $300.00 in filing fees, and then they have to submit evidence to get a court to approve that.

Rightscorp’s business model is to do this cheaply to obtain cheap and fast settlements, no way are they going to start hiring lawyers and submitting evidence, that would kill them off and they are already in deep red ink.

Look for the clowns from Rightscorp to continue on with the extortion/settlelment business as usual, court ruling be damned

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