rejecting a service provider’s argument that its provision of a hyperlink qualified it as a § 512(d) service provider because the copyright holder did not allege that the service provider infringed its copyrights by providing a hyperlink
How later courts described this case
- rejecting a service provider’s argument that its provision of a hyperlink qualified it as a § 512(d) service provider because the copyright holder did not allege that the service provider infringed its copyrights by providing a hyperlink
- “[S]ubstantial compliance means substantial compliance with all of § 512(c)(3)’s clauses, not just some of them.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: SUBPOENA OF INTERNET No. 24-3978
SUBSCRIBERS OF COX
D.C. No.
COMMUNICATIONS, LLC
1:23-cv-00426-
AND COXCOM, LLC
JMS-WRP
______________________________
CAPSTONE STUDIOS CORP.;
MILLENNIUM FUNDING, INC.; OPINION
VOLTAGE HOLDINGS, LLC,
Petitioners - Appellants,
v.
COXCOM LLC,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted June 5, 2025
Honolulu, Hawaii
Filed August 15, 2025
2 IN RE SUBPOENA INTERNET SUBSCRIBERS
Before: William A. Fletcher, Morgan B. Christen, and
Roopali H. Desai, Circuit Judges.
Opinion by Judge Christen
SUMMARY *
Digital Millennium Copyright Act
The panel affirmed the district court’s order quashing a
subpoena sought by Capstone Studios Corp., a copyright
holder, and issued pursuant to § 512(h) of the Digital
Millennium Copyright Act (“DMCA”) to CoxCom LLC, an
Internet service provider.
Capstone sought to obtain the identities of 29 Cox
subscribers whose IP addresses appeared to be showing
pirated copies of Capstone’s movie, Fall. Subsection 512(h)
permits the clerk of any United States district court to issue
a subpoena to a “service provider” on behalf of a copyright
holder. Section 512 includes four safe harbors to limit
service providers’ liability for their users’ infringements.
Upon review, the district court concluded that Cox qualified
for one of § 512’s four safe harbors—17 U.S.C. § 512(a)—
because Cox merely provided its users with an Internet
connection and played no other role in the alleged
infringement.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE SUBPOENA INTERNET SUBSCRIBERS 3
The panel addressed, as an issue of first impression,
whether the DMCA allows a § 512(h) subpoena to issue to a
§ 512(a) service provider, who plays the role of a conduit for
the communications of others, as opposed to a service
provider who stores or provides a link to infringing material.
Thus, a § 512(a) service provider cannot participate in the
notice and takedown process, because there is nothing to
take down. Under the text of the DMCA’s subpoena
provision, a copyright holder’s request for a § 512(h)
subpoena must include, among other things, a copy of the
notification described in subsection (c)(3)(A), which
informs the service provider of the alleged infringing
activity. The panel held that because a § 512(a) service
provider cannot remove or disable access to infringing
content, it cannot receive a valid (c)(3)(A) notification,
which is a prerequisite for a § 512(h) subpoena.
Accordingly, a § 512(h) subpoena cannot issue to a § 512(a)
service provider as a matter of law.
The panel held that the district court did not clearly err
when it found that Cox acted only as a § 512(a) service
provider with respect to the alleged infringement by Cox’s
29 subscribers. Because Cox’s role in the alleged
infringement was limited to that of a § 512(a) internet
service provider, Capstone’s subpoena was invalid and the
district court did not abuse its discretion when it quashed the
subpoena.
4 IN RE SUBPOENA INTERNET SUBSCRIBERS
COUNSEL
Kerry S. Culpepper (argued), Culpepper IP PLLC, Kailua
Kona, Hawaii, for Petitioners.
Christopher J. Cariello (argued), Orrick Herrington &
Sutcliffe LLP, New York, New York; Abigail Colella,
Orrick Herrington & Sutcliffe LLP, Washington, D.C.;
Rachael Jensen, Orrick Herrington & Sutcliffe LLP, Austin,
Texas; Thomas J. Kearney and Jennifer Golinveaux,
Winston & Strawn LLP, San Francisco, California; Joachim
P. Cox, Abigail M. Holden, Cox Fricke LLP, Honolulu,
Hawaii; for Defendant-Appellee.
Rose L. Ehler and Oliver L. Brown, Munger Tolles & Olson
LLP, Los Angeles, California; Kelly M. Klaus and Shannon
G. Aminirad, Munger Tolles & Olson LLP, San Francisco,
California; for Amici Curiae Motion Picture Association
Inc. and Recording Industry Association of America.
Mitchell L. Stoltz and Victoria Noble, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.
IN RE SUBPOENA INTERNET SUBSCRIBERS 5
OPINION
CHRISTEN, Circuit Judge:
Capstone Studios Corp., a copyright holder, successfully
petitioned a district court clerk to issue a subpoena pursuant
to § 512(h) of the Digital Millennium Copyright Act to
CoxCom LLC, an Internet service provider. Capstone
sought to obtain the identities of 29 Cox subscribers whose
IP addresses appeared to be sharing pirated copies of
Capstone’s movie, Fall, via a peer-to-peer filesharing
protocol called BitTorrent. One of Cox’s subscribers
objected to the subpoena. Upon review, the district court
concluded that Cox qualified for one of § 512’s four safe
harbors—17 U.S.C. § 512(a)—because Cox merely
provided its users with an Internet connection and played no
other role in the alleged infringement. The district court
concluded that a § 512(h) subpoena cannot issue to a
§ 512(a) service provider as a matter of law. Because Cox
acted only as a § 512(a) service provider with respect to the
alleged infringement, the court deemed Capstone’s
subpoena invalid. The district court quashed the subpoena
and Capstone appeals. We affirm the district court’s order.
I.
A.
This case concerns 17 U.S.C. § 512(h), a provision of the
Digital Millennium Copyright Act (DMCA) that establishes
an expedited subpoena process through which a copyright
holder can obtain the identities of online infringers.
Subsection 512(h) permits the clerk of any United States
district court to issue a subpoena to a “service provider” on
behalf of a copyright holder. “Service providers” generally
6 IN RE SUBPOENA INTERNET SUBSCRIBERS
include entities that maintain websites, deliver network
access, or host content on their servers. See § 512(k). If a
copyright holder’s petition for a § 512(h) subpoena meets all
the statutory requirements, the clerk “shall expeditiously
issue” the proposed subpoena without oversight from a
judge. § 512(h)(4). As the Eighth Circuit explained in In re
Charter Communications, Inc., Subpoena Enforcement
Matter, 393 F.3d 771, 775 n.3 (8th Cir. 2005), 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 enacting § 512, Congress struck a compromise
between copyright holders and service providers. Section
512 “preserves strong incentives for service providers and
copyright owners to cooperate to detect and deal with
copyright infringements that take place in the digital
networked environment.” S. Rep. No. 105-190, at 20
(1998). The safe harbors that Congress included in § 512
limit service providers’ liability for their users’ infringement
in exchange for their cooperation in removing infringing
content from the Internet. Most of the safe harbors require
service providers to remove or disable access to infringing
material upon notification from the copyright holder—
referred to as the notice and takedown process. See, e.g.,
§ 512(b)(2)(E), (c)(1)(C), (d)(3). The statute’s four primary
safe harbors protect service providers depending on the
technical role they played in the alleged infringement:
§ 512(a) limits the liability of service providers when they
did nothing more than transmit, route, or provide
connections for infringing material; § 512(b) limits the
IN RE SUBPOENA INTERNET SUBSCRIBERS 7
liability of service providers for “system caching,” that is,
when they provided “intermediate and temporary storage of
material on a system or network” under certain conditions;
§ 512(c) limits the liability of service providers for material
that “resid[ed] on [the service provider’s] systems or
networks” at the direction of its users; and § 512(d) limits
the liability of service providers that performed an
“information location tool” function, i.e., linking users to
online locations containing infringing material. 17 U.S.C.
§ 512(a)–(d).
The alleged infringement at issue here took place via
BitTorrent, a peer-to-peer (P2P) network protocol—so called
because users’ computers communicate directly with each
other rather than through centralized servers. See Metro-
Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
919–20 (2005). The BitTorrent protocol responds to a user’s
request for a file by connecting to the Internet and
identifying “peers”—other users who have the requested
file, or part of the requested file, stored on their devices.
Peers are identified by their Internet Protocol (IP) addresses.
A user may obtain the requested file from multiple peers.
One peer might complete one portion of the request and send
one part of the file, and additional peers identified by
BitTorrent may supply the remaining pieces. Eventually, by
facilitating communication between the user and other peers,
BitTorrent ensures that the user obtains the completed file.
See Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020,
1026–28 (9th Cir. 2013).
Without the need for a centralized server, P2P network
users can circumvent storage costs, exchange files faster
than on other types of networks, and avoid the risk that a
malfunction in the server will disable the network. Grokster,
545 U.S. at 920. Given these benefits in security, cost, and
8 IN RE SUBPOENA INTERNET SUBSCRIBERS
efficiency, P2P networks are employed by universities,
government agencies, corporations, and libraries, among
others. Id. But the lack of a centralized server also makes it
difficult to monitor, regulate, and remove the content
exchanged between P2P users, which makes this type of
networking attractive for exchanging infringing material. To
police infringement taking place via BitTorrent, copyright
holders monitor torrent trackers. A torrent tracker is
software that assists in the communication between peers.
Torrent trackers monitor which peers have which pieces of
the file and identify who needs which pieces. Any peer can
contact a tracker at any time to obtain a list of peers who are
sharing a particular file. See Chao Zhang et al., Unraveling
the BitTorrent Ecosystem, 22 IEEE Transactions on Parallel
and Distributed Systems 1164, 1166 (2011). Thus, by
monitoring torrent trackers, copyright holders can identify
peers, collect their IP addresses, discover their identities, and
bring infringement claims against them.
B.
Appellant Capstone Studios Corp. owns the copyright to
the movie Fall (2022). 1 Capstone alleges that Fall has been
subjected to massive Internet piracy through the BitTorrent
protocol. Capstone specifically identified 29 IP addresses
that it suspected of sharing Fall through BitTorrent using an
Internet connection provided by CoxCom, LLC, an Internet
service provider (ISP). Capstone petitioned the district court
clerk in the District of Hawaii to issue a § 512(h) subpoena
to Cox in order to obtain the identities of the subscribers
associated with each of the 29 IP addresses. The clerk issued
1
Millennium Funding, Inc. and Voltage Holdings, LLC jointly hold the
copyright with Capstone. We refer to the copyright holders together as
“Capstone.”
IN RE SUBPOENA INTERNET SUBSCRIBERS 9
the subpoena on April 13, 2023. Cox gave notice to its
affected subscribers, informing them of the subpoena and
requesting that they notify the court if they had any objection
to Cox responding to the subpoena. One of the affected
subscribers, “John Doe,” wrote a letter informing the district
court that he did not download Fall. John Doe stated that,
upon receipt of the subpoena, he realized that he had
forgotten to add a password to his Wi-Fi router, leaving his
network open for anyone to use. John Doe asked the court
to quash the subpoena and objected to the release of his
personal information. No other subscriber objected, and Cox
substantially complied with the subpoena by disclosing the
identities associated with the other 28 IP addresses to
Capstone.
A magistrate judge construed John Doe’s letter as a
motion to quash and directed Capstone to respond. Capstone
did, and it argued that Doe did not assert a legal basis for
quashing the subpoena or identify an undue burden or
expense that would result from complying with it.
On August 31, 2023, the magistrate judge issued findings
and a recommendation (F&R) that the subpoena was invalid
and should be quashed. Although not raised by John Doe or
Capstone, the magistrate judge concluded that the subpoena
was invalid because Cox’s role in disseminating the
copyrighted material was confined to providing the Internet
connection, which qualified Cox for one of § 512’s four
primary safe harbors—§ 512(a). Relying on the text of the
statute and case law from other circuits, the magistrate judge
concluded that a § 512(a) service provider cannot be subject
to a § 512(h) subpoena as a matter of law.
Capstone objected to multiple findings and conclusions
in the F&R, including the magistrate judge’s legal
10 IN RE SUBPOENA INTERNET SUBSCRIBERS
conclusion that the DMCA does not permit a § 512(h)
subpoena to issue to a § 512(a) service provider and the
factual finding that Cox acted only as a § 512(a) service
provider with respect to the infringement at issue. For the
first time, Cox appeared in the proceeding and filed a
response to Capstone’s objections. The district court
adopted the F&R over Capstone’s objections. Capstone filed
a motion for reconsideration pursuant to Federal Rule of
Civil Procedure 59(e), which the district court denied.
Capstone timely appealed. 2
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
Although we generally review orders granting or denying a
motion to quash a subpoena for abuse of discretion, In re
Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905,
909 (9th Cir. 2004), the subject order on the motion to quash
2
Capstone argues that Cox should not have been permitted to participate
in the proceedings for two reasons: (1) Cox waived any opportunity to
challenge the validity of the subpoena because its objection was
untimely; and (2) Cox lacked standing because it complied with the
subpoena except as to Capstone’s request for John Doe’s identity, which
Capstone subsequently withdrew. We reject both arguments. While the
district court was under no obligation to permit Cox to participate,
Capstone does not explain how the court abused its discretion when it
found good cause to consider Cox’s untimely objections. See McCoy v.
Sw. Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002). Cox had
standing to participate because the district court’s ruling on whether Cox
acted as a § 512(a) or (d) service provider had the potential to impose a
legal obligation on Cox to respond to the subpoena, which is a concrete
and redressable injury. See Seila L. LLC v. Consumer Fin. Prot. Bureau,
591 U.S. 197, 211 (2020) (concluding that a party’s obligation to comply
with a civil investigative demand and provide documents it would prefer
to withhold is a concrete injury); see also Arakaki v. Lingle, 477 F.3d
1048, 1056 (9th Cir. 2007) (reviewing standing de novo).
IN RE SUBPOENA INTERNET SUBSCRIBERS 11
involved two questions with different standards of review:
(1) whether a § 512(h) subpoena may properly issue to a
§ 512(a) service provider is a matter of statutory
interpretation that we review de novo, see McKinney-
Drobnis v. Oreshack, 16 F.4th 594, 603 (9th Cir. 2021); and
(2) whether Cox acted only as a § 512(a) service provider is
a factual finding that we review for clear error, see Thomas
v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005).
III.
The validity of Capstone’s subpoena turns on two issues:
first, as a matter of law, whether the DMCA allows a
§ 512(h) subpoena to issue to a § 512(a) service provider;
and second, as a matter of fact, whether Cox acted only as a
§ 512(a) service provider with respect to the infringement at
issue.
A.
We have not yet had occasion to address whether a
§ 512(h) subpoena may issue to a § 512(a) service provider.
To answer this, we need to look no further than the text of
the DMCA. Subsection 512(a) states that “[a] service
provider shall not be liable . . . for infringement of copyright
by reason of the provider’s transmitting, routing, or
providing connections for, material through a system or
network controlled or operated by or for the service
provider.” A service provider seeking to qualify for the
§ 512(a) safe harbor must also meet additional requirements.
For example, the transmission must have been initiated by a
person other than the service provider and the service
provider cannot maintain a copy of the material for a longer
period than is reasonably necessary for the transmission. See
§ 512(a)(1)–(5).
12 IN RE SUBPOENA INTERNET SUBSCRIBERS
Subsection 512(a) is materially different from the other
primary safe harbors, § 512(b)–(d). Subsections 512(b)–(d)
all contain a “notice and takedown” provision that conditions
qualification for the safe harbor. Upon notification of
claimed infringement, the service provider must “respond[]
expeditiously to remove, or disable access to, the material
that is claimed to be infringing.” § 512(b)(2)(E), (c)(1)(C),
(d)(3). This provision is notably absent from § 512(a). The
reason for this omission is clear from the text of the safe
harbors and the different functions Congress sought to
exempt from liability. Subsections 512(b) and 512(c) limit
liability for service providers who provide “intermediate and
temporary storage of material on [the service provider’s]
system or network” and “storage at the direction of a user of
material that resides on [the service provider’s] system or
network.” If a service provider qualifies for § 512(b) or
§ 512(c) because infringing material is stored or otherwise
resides on the service provider’s system or network, that
service provider has the ability to remove the material from
its system or network (or otherwise disable access to it) upon
receipt of notice of infringement. Similarly, § 512(d) limits
liability for service providers who “refer[] or link[] users to
an online location containing infringing material or
infringing activity, by using information location tools,
including a directory, index, reference, pointer, or hypertext
link.” A service provider who qualifies for § 512(d) can
disable access to the infringing material by removing or
disabling its directory or hyperlink that links the user to the
infringing content.
By contrast, § 512(a) limits liability for service providers
who “transmit[], rout[e], or provid[e] connections for,
material through a system or network controlled or operated
by or for the service provider.” Congress intended to limit
IN RE SUBPOENA INTERNET SUBSCRIBERS 13
the § 512(a) safe harbor to service providers who “play[] the
role of a ‘conduit’ for the communications of others,” S. Rep.
No. 105-190, at 41, as opposed to service providers who
store infringing material or provide a link to a location where
infringing material is stored. Unlike § 512(b)–(d) service
providers, § 512(a) service providers furnish only the
connection through which infringers exchange content. By
definition, there is no infringing material that resides on a
§ 512(a) service provider’s system or network, nor is there a
“link” or “directory” that a § 512(a) service provider
maintains. Thus, a § 512(a) service provider cannot
participate in the notice and takedown process, because there
is nothing for a § 512(a) service provider to take down.
With this understanding of § 512(a) and the notice and
takedown process, we turn to the text of the DMCA’s
subpoena provision. A copyright holder’s request for a
§ 512(h) subpoena must include, among other things, “a
copy of a notification described in subsection (c)(3)(A),”
which informs the service provider of the alleged infringing
activity. § 512(h)(2)(A). That (c)(3)(A) notification is the
same notification to which § 512(b)–(d) service providers
must “respond[] expeditiously” by removing or disabling
access to the identified infringing content. See
§ 512(b)(2)(E), (c)(1)(C), (d)(3).
The (c)(3)(A) notification itself must satisfy six
requirements. 3 One requirement is that the copyright holder
3
The statute states that the notification must “include[] substantially the
following” and lists the six requirements. § 512(c)(3)(A). We have held
that an effective notification must contain all of the listed items. See
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1112 (9th Cir. 2007)
(“[S]ubstantial compliance means substantial compliance with all of
§ 512(c)(3)’s clauses, not just some of them.”).
14 IN RE SUBPOENA INTERNET SUBSCRIBERS
provide “[i]dentification of the material that is claimed to be
infringing or to be the subject of infringing activity and that
is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit the service
provider to locate the material.” § 512(c)(3)(A)(iii). The
(c)(3)(A) notification requirement presents a problem for a
copyright holder who seeks to subpoena a § 512(a) service
provider because a § 512(a) service provider merely
furnishes an Internet connection to its subscribers. Such a
provider cannot “remove” or “disable access to” any
infringing content those subscribers might share, because
there is nothing for the § 512(a) service provider to remove.
Without the ability to provide a valid (c)(3)(A) notification
to § 512(a) service providers, copyright holders cannot
satisfy the requirements for issuance of a § 512(h) subpoena.
The § 512(h) subpoena provision is inextricably
intertwined with the (c)(3)(A) notification, cross-referencing
(c)(3)(A) three times: (1) the request for the § 512(h)
subpoena must contain a copy of the (c)(3)(A) notification;
(2) the clerk shall issue the subpoena only “[i]f the
notification filed satisfies the provisions of subsection
(c)(3)(A)”; and (3) the service provider shall expeditiously
respond “[u]pon receipt of the issued subpoena, either
accompanying or subsequent to the receipt of a notification
described in subsection (c)(3)(A).” § 512(h)(2)(A), (4), (5).
This statutory text confirms that a § 512(a) service provider
is not a contemplated recipient of a proper (c)(3)(A)
notification. For these reasons, the DMCA does not permit
a § 512(h) subpoena to issue to a § 512(a) service provider.
Two other circuits have reached the same conclusion.
Recording Indus. Ass’n of Am., Inc. v. Verizon Internet
Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003); Charter,
393 F.3d at 777. In Verizon, Recording Industry Association
IN RE SUBPOENA INTERNET SUBSCRIBERS 15
of America (RIAA) served two subpoenas on Verizon, an
ISP, to discover the names of two subscribers who appeared
to be trading .mp3 files of copyrighted music via P2P file
sharing programs, such as KaZaA. 351 F.3d at 1231. The
parties did not dispute that Verizon acted as a § 512(a)
service provider with respect to the infringement, and
Verizon argued that Ҥ 512(h) does not authorize the
issuance of a subpoena to an ISP acting solely as a conduit
for communications the content of which is determined by
others.” Id. The D.C. Circuit concluded based on the text of
§ 512(h) and the overall structure of § 512 that “a subpoena
may be issued only to an ISP engaged in storing on its
servers material that is infringing or the subject of infringing
activity,” and not to a § 512(a) service provider. Id. at 1233.
Roughly a year later, the Eighth Circuit agreed. Charter,
393 F.3d at 777. In Charter, RIAA again requested that a
district court clerk issue a subpoena to Charter
Communications, Inc., an ISP, to produce the names,
physical addresses, telephone numbers, and email addresses
of approximately 200 Charter subscribers. Id. at 774. The
Eighth Circuit observed that the notice and takedown
provision did not apply to § 512(a) service providers and that
the “remove” or “disable access” requirement prevented a
§ 512(a) service provider from receiving a proper (c)(3)(A)
notification. Id. at 776–77. Charter adopted the reasoning
of Verizon wholesale and concluded that “where Charter
acted solely as a conduit for the transmission of material by
others (its subscribers using P2P file-sharing software to
exchange files stored on their personal computers), . . . the
subpoena was not properly issued.” Id. at 777.
Capstone argues that, despite the lack of a statutory
provision requiring a § 512(a) service provider to remove or
disable access to infringing material, a § 512(h) subpoena
16 IN RE SUBPOENA INTERNET SUBSCRIBERS
can issue to a § 512(a) service provider because a § 512(a)
service provider can, as a practical matter, “disable access
to” the infringing material. In support of this argument,
Capstone provided a declaration from its expert witness,
David Cox, the owner of an information technology network
consulting service. The declaration explained two different
methods an ISP could use to “disable access to” infringing
content short of terminating its users’ Internet connection:
destination null routing and port blocking. 4
Capstone’s expert explained that destination null routing
prevents users from reaching specific destination IP
addresses. Because an IP address can be associated with a
computer as well as a website, an ISP can null route any user
that tries to reach a website or computer hosting the
infringing material. Instead of reaching that particular IP
address, the user is routed away or the transmission is
dropped. In the case of P2P networking, Capstone’s expert
stated that an ISP could null route the traffic of any
subscriber that tries to reach the IP address that contains the
infringing material. If destination null routing is employed,
users are still able to access all other online locations on the
Internet.
Capstone’s expert also explained that an ISP has the
option of port blocking. A port is a virtual point where
network connections start and end. Ports are numbered and
standardized across all network-connected devices, and
allow computers to easily differentiate between different
4
The technical capabilities of § 512(a) service providers cannot override
the plain text of the statute—no statutory provision requires a § 512(a)
service provider to remove or disable access to infringing material in
response to a (c)(3)(A) notification. Even considering Capstone’s
practical argument, it is unpersuasive.
IN RE SUBPOENA INTERNET SUBSCRIBERS 17
kinds of traffic. Many ports are associated with a specific
process or service. For example, email goes through port 25,
unsecured web traffic goes through port 80, secured web
traffic goes through port 443, and remote desktop protocols
go through port 3389. See Service Name and Transport
Protocol Port Number Registry, Internet Assigned Numbers
Auth., https://www.iana.org/assignments/service-names-
port-numbers/service-names-port-numbers.xhtml (last
visited Aug. 10, 2025). Ports are typically “open,” meaning
they can receive and transmit data. Port blocking is the
process of an ISP “closing” a port for a particular user.
Because BitTorrent traffic is commonly directed through
ports 6882–6889, Capstone’s expert explained that an ISP
could block those ports for a particular user without
terminating the user’s access to the Internet. 5
5
The district court struck David Cox’s declaration because the court
concluded that Capstone could have raised its arguments concerning
destination null routing and port blocking in its objections to the F&R.
Capstone argues on appeal that the declaration was necessary to show
that the district court made a factual mistake when it stated that null
routing “effectively terminates a network connection.” See Fed. R. Civ.
P. 60(b)(1). Capstone’s argument overlooks that, at the time the district
court adopted the F&R, the parties and the court were using the term
“null routing” to refer to source null routing, which prevents a user from
reaching any location on the Internet. The court referred to a document
Capstone cited in its objections which stated that source null routing
“effectively terminat[es] a network connection.” Only in its motion for
reconsideration did Capstone clarify that there are different types of null
routing and present evidence that an ISP could engage in destination null
routing, which prevents a user from reaching only a particular online
destination. Thus, the district court did not abuse its discretion by
striking the declaration. See Hambleton Bros. Lumber Co. v. Balkin
Enters., Inc., 397 F.3d 1217, 1224 n.4 (9th Cir. 2005) (reviewing a
district court’s order striking a declaration for abuse of discretion).
Regardless, the court’s decision to strike the declaration made no
18 IN RE SUBPOENA INTERNET SUBSCRIBERS
The DMCA does not define the phrase “disable access
to” in § 512(b)–(d), but in Verizon, the D.C. Circuit
considered whether an ISP can “disable access” to infringing
material by terminating the offending subscriber’s Internet
account. 351 F.3d at 1235. The D.C. Circuit rejected
RIAA’s argument that disabling users’ access to the Internet
“disabled access” to infringing material for purposes of the
(c)(3)(A) notification because termination of customers’
accounts is a different remedy already set forth in a different
provision of § 512. Id. The D.C. Circuit concluded that
“Congress considered disabling an individual’s access to
infringing material and disabling access to the internet to be
different remedies for the protection of copyright owners,
the former blocking access to the infringing material on the
offender’s computer and the latter more broadly blocking the
offender’s access to the internet.” Id.; compare 17 U.S.C.
§ 512(j)(1)(A)(i) (authorizing injunction restraining ISP
“from providing access to infringing material”), with 17
U.S.C. § 512(j)(1)(A)(ii) (authorizing injunction restraining
ISP “from providing access to a subscriber or account
holder . . . who is engaging in infringing activity . . . by
terminating the accounts of the subscriber or account
holder”).
Neither Verizon nor Charter specifically grappled with
destination null routing or port blocking, measures that do
not go as far as terminating a subscriber’s account. But in
our view, these measures do not go far enough because they
do not “disable access” to infringing material within the
meaning of § 512. As the district court recognized,
destination null routing and port blocking cannot “disable
difference to the result of the motion for reconsideration because the
court considered and rejected the expert’s declaration.
IN RE SUBPOENA INTERNET SUBSCRIBERS 19
access” within the meaning of (c)(3)(A)(iii) because an ISP
can use these methods only to prevent its own subscribers
(and not subscribers of other ISPs) from reaching destination
IP addresses containing infringing material or using ports
that commonly route infringing material. In other words, an
ISP cannot “disable access” to infringing material via port
blocking or destination null routing; it can only disable its
subscribers’ access to infringing material. Capstone points
to nothing in the text or legislative history of § 512
suggesting that Congress contemplated such a piecemeal
application of the notice and takedown procedure.
Because a § 512(a) service provider cannot remove or
disable access to infringing content, it cannot receive a valid
(c)(3)(A) notification, which is a prerequisite for a § 512(h)
subpoena. We therefore conclude from the text of the
DMCA that a § 512(h) subpoena cannot issue to a § 512(a)
service provider as a matter of law.
Capstone makes several textual arguments to the
contrary, none of which disturb our conclusion. First,
Capstone points to § 512(k)’s two definitions of “service
provider.” As used in § 512(a), a “service provider” is:
an entity offering the transmission, routing,
or providing of connections for digital online
communications, between or among points
specified by a user, of material of the user’s
choosing, without modification to the content
of the material as sent or received.
§ 512(k)(1)(A). As used in the remainder of § 512, “service
provider” means:
20 IN RE SUBPOENA INTERNET SUBSCRIBERS
a provider of online services or network
access, or the operator of facilities therefor,
and includes an entity described in [the
definition of “service provider” applicable to
§ 512(a)].
§ 512(k)(1)(B). Capstone argues that because the latter
definition applies to all provisions within § 512 other than
§ 512(a), the latter definition applies to “service provider” as
used in § 512(h). From there, Capstone argues that because
§ 512(h) permits a copyright owner to request the clerk to
issue a subpoena to a “service provider,” and the definition
of “service provider” applicable to § 512(h) includes the
broader list of entities described in § 512(k)(1)(B), it follows
that a § 512(h) subpoena can issue to a § 512(a) service
provider.
RIAA made the same argument in Verizon. 351 F.3d at
1236. There, the D.C. Circuit stated that the argument
“borders upon the silly,” because it does not resolve the main
conflict: a § 512(a) service provider cannot “remove” or
“disable access to” infringing material. Id. (“Define all the
world as an ISP if you like, the validity of
a § 512(h) subpoena still depends upon the copyright holder
having given the ISP, however defined, a notification
effective under § 512(c)(3)(A).”). Capstone does nothing to
differentiate its argument from the one rejected in Verizon,
nor does Capstone explain how its read of § 512(k)
overcomes the notification requirement or any of the other
textual indications within § 512 that a § 512(a) service
provider cannot be the subject of a § 512(h) subpoena.
Capstone also argues that § 512(a) service providers
must be subject to § 512(h) subpoenas because concluding
otherwise contradicts language in § 512(e) and § 512(m).
IN RE SUBPOENA INTERNET SUBSCRIBERS 21
Subsection 512(e) creates a fifth safe harbor for educational
institutions whose faculty or employee graduate students
engage in infringing conduct on the school’s network. To
qualify for § 512(e) protection, the educational institution
must first qualify for one of the four primary safe harbors,
§ 512(a)–(d). Subsection 512(e) also requires that the
educational institution must not have received “more than
two notifications described in subsection (c)(3)[(A)] of
claimed infringement by such faculty member or graduate
student” in the past three years. § 512(e)(1)(B). Capstone
argues that if a § 512(e) institution can also be a § 512(a)
service provider, then the requirement that the institution
receive no more than two (c)(3)(A) notifications in the past
three years makes no sense unless a § 512(a) service
provider can receive (c)(3)(A) notifications. In a similar
vein, § 512(m) states that eligibility for the first four safe
harbors, § 512(a)–(d), does not require service providers to
“gain[] access to, remov[e], or disabl[e] access to” the
infringing content if doing so would violate another law.
§ 512(m)(2). In Capstone’s view, § 512(m) assumes that all
service providers eligible for the primary safe harbors—
including § 512(a)—are capable of removing or disabling
access to infringing material.
Capstone’s argument improperly examines these
provisions of § 512 in isolation. Reading the statute as a
whole, § 512(e) sets forth the requirements for an
educational institution to qualify for that safe harbor without
regard to which of the four primary safe harbors the
institution also qualifies. The requirement that the
institution receive no more than two (c)(3)(A) notifications
applies generally; the fact that a § 512(a) service provider
cannot receive (c)(3)(A) notifications simply means that
§ 512(a) service providers automatically meet the
22 IN RE SUBPOENA INTERNET SUBSCRIBERS
requirement of receiving two or fewer notifications.
Subsection 512(m) merely states the DMCA should not be
construed to require service providers to break the law to
satisfy the notice and takedown requirement. It does not
suggest that every service provider is necessarily capable of
participating in the notice and takedown process. There are
numerous indications within § 512 that § 512(a) service
providers are incapable of removing or disabling access to
infringing content, and those indications sufficiently
outweigh the contrary implication Capstone reads within
§ 512(e) or § 512(m).
Capstone next argues that the notification provision in
(c)(3)(A) can be satisfied in two ways, only one of which
requires the copyright holder to remove or disable access to
the infringing material. The (c)(3)(A) notification provision
requires that a copyright holder provide:
Identification of the material that is claimed
to be infringing or to be the subject of
infringing activity and that is to be removed
or access to which is to be disabled, and
information reasonably sufficient to permit
the service provider to locate the material.
§ 512(c)(3)(A)(iii) (emphasis added). Capstone argues that
the first “or” creates two options for a copyright holder to
give notice: the copyright holder can either (1) identify the
material that is claimed to be infringing; or (2) identify the
material that is the subject of infringing activity and that is
to be removed or access to which is to be disabled. But
reading the requirement that an ISP “remove” or “disable
access” to apply only to “material [that is] the subject of
infringing activity” and not apply to “material that is claimed
IN RE SUBPOENA INTERNET SUBSCRIBERS 23
to be infringing” violates fundamental principles of statutory
interpretation. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 147 (2012)
(“When there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a prepositive or
postpositive modifier normally applies to the entire series.”).
Capstone’s reading would also lead to absurd results
contrary to the purpose of the statute. In creating § 512,
Congress sought to offer service providers safe harbor in
exchange for their cooperation in expeditiously removing
infringing material from their systems and networks.
Capstone does not explain why Congress would require
takedown for only “material that is subject to infringing
activity” but not “material that is claimed to be infringing.”
See § 512(c)(3)(A)(iii).
Finally, 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.
The matter before us is a discrete question of statutory
interpretation. Because § 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. And without an effective
(c)(3)(A) notification, a copyright holder cannot obtain a
valid § 512(h) subpoena. We conclude as a matter of law
that the DMCA does not permit a § 512(h) subpoena to issue
to a § 512(a) service provider.
24 IN RE SUBPOENA INTERNET SUBSCRIBERS
B.
Having resolved the legal question, we turn next to the
factual question: whether the district court clearly erred
when it found that Cox acted only as a § 512(a) service
provider with respect to the alleged infringement undertaken
via BitTorrent by Cox’s 29 subscribers.
The plain text of § 512 indicates that the safe harbor for
which a service provider qualifies depends on the function
the service provider performed with respect to the
infringement at issue. For example, § 512(a) states: “[a]
service provider shall not be liable . . . for infringement of
copyright by reason of the provider’s transmitting, routing,
or providing connections for, material through a system or
network controlled or operated by or for the service provider
. . . .” § 512(a) (emphasis added). Subsections 512(b), (c),
and (d) contain similar language. See § 512(b)(1), (c)(1),
(d). In this way, the safe harbors are not status-based and it
would be incorrect to say that a service provider “is” a
§ 512(a) service provider. What matters is the function
performed with respect to the alleged infringement at issue.
See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1116–17
(9th Cir. 2007) (rejecting a service provider’s argument that
its provision of a hyperlink qualified it as a § 512(d) service
provider because the copyright holder did not allege that the
service provider infringed its copyrights by providing a
hyperlink).
A service provider can simultaneously qualify for more
than one safe harbor, § 512(n), and while the parties appear
to agree that Cox acted as a § 512(a) service provider,
Capstone argues that Cox also acted as a § 512(d) service
provider with respect to the infringement at issue. There is
IN RE SUBPOENA INTERNET SUBSCRIBERS 25
no dispute that a § 512(h) subpoena may issue to a § 512(d)
service provider.
Subsection 512(d), titled “Information location tools,”
provides a safe harbor when an alleged infringement takes
place “by reason of the provider referring or linking users to
an online location containing infringing material or
infringing activity, by using information location tools,
including a directory, index, reference, pointer, or hypertext
link.” § 512(d). Capstone argues that Cox acted as a
§ 512(d) service provider because it assigned IP addresses to
its subscribers and, by connecting those IP addresses to the
Internet, it referred or linked those users to online locations
that contained infringing material or material subject to
infringing activity. Capstone contends that an IP address is
the same as a hypertext link, reference, or pointer because an
IP address can function just like a hypertext link that directs
a user to a website or other destination.
Capstone cites to no case or other authority that outlines
the types of service providers that “refer or link” users to
infringing material within the meaning of § 512(d), but a
basic understanding of IP addresses and P2P networking
defeats Capstone’s argument. Connecting a user to the
Internet and assigning the user an IP address does not “link”
or “refer” the user anywhere, much less to a particular
location containing infringing material. Following
Capstone’s logic, an ISP’s assignment of an IP address to a
user would also “link” or “refer” that user to all locations on
the Internet, including all those containing illicit and illegal
content. If every ISP “links” or “refers” its users to
infringing material merely by assigning an IP address and
providing Internet service, then the § 512(d) safe harbor
would completely swallow the § 512(a) safe harbor. We
reject Capstone’s argument that Cox also served as a
26 IN RE SUBPOENA INTERNET SUBSCRIBERS
§ 512(d) service provider with respect to the alleged
infringement.
Capstone separately challenges certain evidence the
district court relied upon when it found that Cox acted only
as a § 512(a) service provider—and not a § 512(d) service
provider—with respect to the 29 IP addresses that Capstone
suspects shared Fall. Upon receipt of the magistrate judge’s
F&R, Capstone’s objections, and Cox’s response, the district
court issued an order requesting supplemental evidence. The
court agreed that a § 512(a) service provider cannot be
subject to a § 512(h) subpoena but requested that Cox “file
with the court appropriate evidentiary proof that it is—or is
not—an internet service provider under 17 U.S.C. § 512(a)
for purposes of the subpoena issued in this matter.” Cox
submitted the declaration of Amber Hall, Cox’s Chief
Compliance and Privacy Officer. Hall explained that Cox
engages in transmitting, routing, or providing connections
for its users. The declaration said nothing about the 29 IP
addresses, BitTorrent, or the specific infringement of Fall.
Capstone moved to strike Hall’s declaration, provided a
side-by-side comparison of the declaration and the DMCA,
and argued that the declaration was devoid of facts and
merely parroted the language of § 512(a). Capstone
maintains on appeal that Hall’s declaration was wholly
conclusory and that the district court clearly erred when it
relied on the declaration to find that Cox acted only as a
§ 512(a) service provider.
A declaration is conclusory if it “do[es] not affirmatively
show personal knowledge of specific facts,” Shakur v.
Schriro, 514 F.3d 878, 890 (9th Cir. 2008) (citation omitted),
or if it “state[s] only conclusions, and not such facts as would
be admissible in evidence,” United States v. Shumway, 199
F.3d 1093, 1104 (9th Cir. 1999) (citation modified). We
IN RE SUBPOENA INTERNET SUBSCRIBERS 27
agree that Hall’s declaration is conclusory because it is
devoid of factual assertions that would help determine the
technical role Cox played in the alleged infringement. But
we do not conclude that the district court clearly erred when
it found that Cox acted as a § 512(a) service provider
because the parties did not meaningfully dispute the role Cox
played with respect to the alleged infringement.
Below and on appeal, the parties agreed that Cox did
nothing more than assign IP addresses and provide an
Internet connection to its 29 subscribers who allegedly
engaged in copyright infringement. 6 The parties have only
ever disputed whether those services qualify as transmission
services described in § 512(a), or qualify as information
location tool services described in § 512(d). The court
clearly understood, and Capstone did not dispute, that the
infringement took place via P2P networking and the extent
of an ISP’s technical involvement in P2P networking. Thus,
the district court did not need any additional evidence to find
that Cox acted only as a § 512(a) service provider.
Because Cox’s role in the alleged infringement was
limited to that of a § 512(a) ISP, and because a § 512(h)
subpoena cannot issue as a matter of law to a § 512(a)
6
Capstone directs the panel to Cox’s website, which advertises its cloud
storage services, and argues that these advertisements contradict the
district court’s conclusion that Cox does not store content. As we have
already explained, § 512(a) does not require that the service provider act
merely as a transmitter in all respects—only with respect to its role in the
alleged infringement. See Perfect 10, 488 F.3d at 1116–17.
Accordingly, whether Cox has the ability to provide storage is only
pertinent if Capstone alleged that Cox stored the infringing material at
issue. As long as Cox did nothing more than transmit, route, or provide
connections for the subscribers who infringed Capstone’s copyright, Cox
qualifies for only the § 512(a) safe harbor.
28 IN RE SUBPOENA INTERNET SUBSCRIBERS
service provider, Capstone’s subpoena was invalid and the
district court did not abuse its discretion when it quashed the
subpoena.
IV.
We affirm the district court’s orders quashing the
subpoena and denying Capstone’s motion for
reconsideration.
AFFIRMED.