To help copyright owners sue anonymous uploaders, the Digital Millennium Copyright Act (“DMCA”) provides an expedited subpoena process under 17 U.S.C. § 512(h), where copyright owners can request a court clerk, rather than a judge, to issue a subpoena to identify allegedly infringing uploaders. Without the DMCA's expedited subpoena process, a copyright holder seeking to learn the identity of infringers sharing copyright-protected content on the Internet would have to file an infringement action against individual users suspected of infringement, naming each as a John Doe defendant, and move the court for leave to conduct early discovery. In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 775 n.3 (8th Cir. 2005). 

The DMCA, however, provides a safe harbor under 17 U.S.C. § 512(a) that limits the liability of service providers that do nothing more than transmit, route, or provide connections for infringing material. An Internet access provider (“IAP”), which merely provides its users with an Internet connection, does not actually host any content, and thus cannot participate in the notice and takedown process because there is nothing for an IAP to take down. 

The Ninth Circuit recently addressed whether the DMCA allows a § 512(h) subpoena to issue to a § 512(a) service provider, and held that it does not. In re Subpoena of Internet Subscribers of Cox Communications, LLC, No. 24-3978, 2025 WL 2371947, __ F.4th __ (9th Cir. Aug. 15, 2025) (Capstone sought issuance of a § 512(h) subpoena to Cox). 

Noting that this was “a discrete question of statutory interpretation,” the Court held that “[b]ecause § 512(a) service providers, by definition, are not entities that store infringing material or link users to a location where infringing material is stored, copyright holders cannot give § 512(a) service providers effective (c)(3)(A) notifications.” That is because an IAP cannot “remove” or “disable access to” any infringing content those subscribers might share, as there is nothing for them to remove. And without an effective (c)(3)(A) notification, a copyright holder cannot obtain a valid § 512(h) subpoena. As a matter of law, “the DMCA does not permit a § 512(h) subpoena to issue to a § 512(a) service provider.”

Capstone argues that the alternative to a § 512(h) subpoena—filing John Doe lawsuits against thousands of subscribers—is an unworkable means of policing P2P infringers. We are sympathetic to this argument, 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.

Here, it was undisputed that “Cox did nothing more than assign IP addresses and provide an Internet connection to its 29 subscribers who allegedly engaged in copyright infringement,” so the quashing of the § 512(h) subpoena was affirmed. 

Professor Eric Goldman noted "[t]his ruling reinforces that court clerks should not issue 512(h) subpoenas targeting IAPs for their 512(a)-immunized functions" and that the entire 512(h) mechanism should be stricken or repealed because "512(h) routinely, predictably, and impermissibly forces court clerks to [make legal judgments as to Section 512(a) that] exceed their legal authority."