USA: Access providers do not have to reveal file sharers on demand

Copyright holders in the USA can very easily find out who the customers of Internet service providers are. This applies to hosting providers and search engines, but not to access providers. This was clarified by the US Federal Court of Appeals for the Ninth Circuit in a recent decision. Lower courts must change their practice.

In principle, the US Digital Millennium Copyright Act (DMCA) provides for the following procedure to uncover the identity of Internet users: an objector claims to own rights that would be infringed by a certain file posted online and orders the provider to block the file or the hyperlink to it (“notice & takedown”). The intervener then applies to the court for disclosure of the identity of the customer who posted the file online. A copy of the original blocking order to the provider is sufficient as proof, whereupon the court automatically orders the disclosure of the customer's identity. Those affected are usually informed and can lodge an objection with the court. If they do not do so within an open period of time, the allegation is not investigated, and the provider hands over the name and contact details.

As a rule, (alleged) rights holders do not use this simple method to subsequently take the uploader to court but to exert pressure on them to make voluntary payments. Even for those wrongly accused, it is usually much cheaper and quicker to pay a few thousand dollars to a copyright troll than to risk an expensive court case. Copyright trolls earn significantly more in total over many cases.

Access providers are not hosters

(Alleged) copyright holders like to use this quick way to query user identities not only with hosting providers, hyperlink collections, and search engines, but also with access providers. US federal district courts have waved through the release of subscriber identities for decades, even though the required attachment to the blocking order is missing. After all, the access provider is not a hosting provider that could block a file.

This was also the case in 2023 when a film studio filed an application accusing 29 Hawaiian customers of the access provider Coxcom of illegally distributing a copy of a film via P2P file sharing using Bittorrent. This time, however, one of the 29 people concerned has legally opposed the order. He stated that he had not downloaded or provided the movie; rather, his WLAN had been open to third parties by mistake. The responsible court official did indeed reject the film studio's application – but not based on the WLAN narrative, but because the legal basis was lacking.

Contrary to previous court practice, the order to release customer data is only intended for providers who can also block the file. This is not possible for access providers whose customers (allegedly) use their Internet access for P2P file sharing; in such a case, the ISP cannot block the file because it neither offers nor stores it nor publishes corresponding hyperlinks. Accordingly, the complainant cannot order the access provider to block the file or hyperlink, and it is therefore not possible to attach such a blocking order to the request for disclosure of the identity of the subscriber.

Disclosure still possible, but only after a lawsuit has been filed

The film studio appealed, but lost in both the Federal District Court for Hawaii and the relevant Federal Court of Appeal for the Ninth Circuit. This decision has leverage, as the Ninth Circuit is by far the most populous federal circuit. It includes the states of Alaska, Arizona, Hawaii, Idaho, California, Montana, Nevada, Oregon, and Washington, as well as the territories of Guam and the Northern Mariana Islands. All federal district courts there are now bound by the interpretation of the Court of Appeal.

The same legal opinion was reached by the Federal Court of Appeals for the District of Columbia in 2003 and by the Federal Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and both Dakotas) about a year later. However, they have only a fraction of the population. While DC and the Eighth Circuit together account for less than seven percent of the population, the Ninth Circuit has more than 20 percent.

The decision by no means makes illegal file sharing in these US territories risk-free: rights holders can have the identity of the connection owner of a US access provider ascertained with court assistance. To do so, they must file a lawsuit against unknown persons for copyright infringement and request that the access provider disclose the identity of the defendant connection owner. Such an action involves more effort than simply sending the connection owner a demand for payment, but is not a fundamental obstacle if there is sufficient evidence.

• Decision of the Ninth Circuit in In re: Subpoena of Internet Subscribers of Cox Communications and Coxcomm , Ref. 24-3978

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