Introduction

This blog involves a unique approach being used by a Hawaii law firm to seek to uncover the name, address, email address, MAC address and other information about alleged copyright infringers. The firm is using a DMCA 512(h) subpoena to seek to uncover this information. It is the court CLERK, not a federal JUDGE that issues the subpoena, which Plaintiff then will use to track down and seek settlements from alleged infringers.

The CLERK issued the subpoena on 7/08/24 and the case was TERMINATED the same day.

As the case exhibits noted, Plaintiffs use a company call PML to assist in the recovery process.

PML Process Management Ltd. acts as an agent for rights holders. They monitor and track infringements (downloading and sharing of copyright protected content through Torrents) and apparently work with a "data supplier" for their purpose. It appears they send notices along the lines of cease-and-desist letters (ex, For Symathy FTD, LLC's "Symathy for the Devil" title) and even work with IP and copyright plaintiff law firms to seek to recover revenues from alleged infringers. Here is what their website says:

______________

Our aim is to significantly reduce unauthorized copyright infringement via file-sharing and return lost revenue to the rightful owner.

In order to do that we provide the following services :

• We work with a proprietary data supplier to track your work via bit-torrent platform.

• If the work is detected, the data supplier will notify us and we then notify you.

• Upon notification, we have a network of law firms globally who we manage on behalf of our clients to enforce their rights in the work including recovery of damages and take-down requests.

• We liaise with the law firm, data supplier and you, with the aim of causing as little disruption as possible to you, to ensure a smooth process of protecting your copyright and returning revenue to you.

"We have over ten years of experience in this field and provide seamless service delivery on behalf of our clients. We offer returns of 30% of net revenue (the rest is distributed to the partners working on the project, e.g. law firms and data supplier) in exchange for providing this service."

Sources say this company's clients include well-known movie companies such as Millennium Media, Voltage Pictures, and LHF Productions. These companies are known for their aggressive stance on protecting their intellectual property and frequently engage in legal actions against individuals who share their content illegally online.

It appears Plaintiff's may be alleging that would-be Defendant's are downloading their movies via cellphone torrent clients. It is not 100% clear so this is my opinion only.

Movies that appear to be involved in Copyright infringement allegations in this case

Here is what you may be pursued for as an alleged torrent downloader:

• Sympathy for the Devil
• Breathe
• Silent Night
• Boy Kills World

If you received a letter from your ISP or a demand letter from their law firm, call us for a no cost initial consultation.

Sympathy for the Devil

According to Wikipedia

Sympathy for the Devil is a 2023 American psychological thriller film[3] directed by Yuval Adler and written by Luke Paradise. It stars Nicolas Cage as The Passenger and Joel Kinnaman as The Driver. The film had its world premiere at the Fantasia International Film Festival on July 22, 2023, before its theatrical release on July 28, by RLJE Films.

Breathe

According to Wikipedia:

Breathe is a 2024 American science fiction thriller film directed by Stefon Bristol, written by Doug Simon, and starring Jennifer Hudson, Milla Jovovich, Quvenzhané Wallis, Common, and Sam Worthington. The film is set in a world where oxygen levels on Earth have dropped making it impossible to live on the planet's surface without specialised equipment.

Silent Night

According to wikipedia:

Silent Night is a 2023 American action thriller film directed by John Woo, and starring Joel Kinnaman, Scott "Kid Cudi" Mescudi, Harold Torres, and Catalina Sandino Moreno. The film, which features minimal spoken dialogue, follows an aggrieved father avenging the death of his son, who was killed by local gang members in a drive-by shooting on Christmas Eve. Silent Night was Woo's first American film since Paycheck in 2003. Filming took place in Mexico City from April to May 2022. It was released by Lionsgate in the United States on December 1, 2023 to mixed reviews from critics and only grossed $11 million worldwide.

Boy Kills World

According to Wikipedia:

"Boy Kills World is a 2024 dystopian action comedy film directed by Moritz Mohr, in his directorial debut, from a screenplay by Tyler Burton Smith and Arend Remmers, based on a story by Arend Remmers and Moritz Mohr. The film stars Bill Skarsgård, Jessica Rothe, Michelle Dockery, Brett Gelman, Isaiah Mustafa, Yayan Ruhian, Andrew Koji, Sharlto Copley, Famke Janssen and features the voice of H. Jon Benjamin. The plot revolves around a campaign of vengeance enacted by a martial arts expert, rendered deaf-mute by an attack that killed his entire family, whose thoughts are presented as an inner voice derived from a childhood video game. Boy Kills World had its world premiere at the 2023 Toronto International Film Festival, and was released in the United States by Lionsgate and Roadside Attractions on April 26, 2024. A spin-off video game Super Dragon Punch Force 3 was released on April 24, 2024, with an animated series in development."

As you can see, there are 100 or so alleged downloader defendants. They will likely uncover the names of the internet subscriber and try to ferret out who the infringer is, and whether a settlement can be obtained.

Allegations in the DMCA subpoena by Culpepper IP law firm Hawaii - The 10th Circuit Would Allow the Subpoena on a ISP that acts only as a conduit (as opposed to one that houses content). Is this true?

United States District Court of Colorado (10th Circuit) - NOTE: I believe the case was filed here as it appears CenturyLink may be located in Denver, Colorado.

Here is what the subpoena argued:

TO: CLERK OF THE ABOVE-ENTITLED COURT:

Pursuant to 17 U.S.C. § 512(h) (hereafter: “512(h)”), Capstone Studios Corp.; Ralphie's Gym Membership, LLC; Freedom Feature Ltd; Estate Movie Productions Inc.; Maze Pictures Projects UG & Television Co. KG; Silent Night Productions Inc.; Sympathy FTD, LLC; Boy Kills World Rights, LLC; Breathe Productions Inc.; and Black Lotus Europe B.V. (collectively “Owner”) hereby apply for issuance of a subpoena to CenturyLink Communications, LLC (the service provider) to identify the alleged infringers of Owner's Copyright protected motion pictures as listed in Exhibit “1”.

512(h) provides the copyright owner with a mechanism to request a subpoena from this Court. Particularly, 512(h)(1) provides:

(1) Request.— A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection. As stated in the Declaration of Counsel, the undersigned represents the Owner of the Copyright protected subject matter. 512(h)(2) provides:

(2) Contents of request.—The request may be made by filing with the clerk—

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena;

and

(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

The undersigned provided a representative copy of the notifications described in subsection (c)(3)(A) [See Exhibit “2”], a proposed subpoena and the sworn declaration.

512(h)(3) provides:

(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider. The proposed subpoena is in accordance with 512(h)(3). 512(h)(4) provides:

(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider. As the undersigned has provided the notification, the proposed subpoena in proper form, and the properly executed declaration, the clerk must issue and sign the proposed subpoena.

512(h)(4) provides that the Clerk, not a Judge should issue and sign the proposed subpoena. 512(h)(6) provides that “…the procedure for issuance and delivery of the subpoena…shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum”. That is, 512(h)(6) provides that the procedures for the Rule 45 subpoena shall govern. The proposed subpoena is a Rule 45 subpoena.

Here was their legal argument that the 10th Circuit would allow the subpoena

Thier application for subpoena continued:

The DC Circuit has determined that a subpoena under 512(h) “may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity.” Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1233 (D.C. Cir. 2003) (“Verizon”).

The Eighth Circuit adopted the reasoning of the DC Circuit and concluded that 512(h) only applies to ISPs that directly store, cache, or provide links to infringing material. See In re Charter Communications, Inc., 393 F.3d 771, 776-77 (8th Cir. 2005).

The District of Hawaii also agreed with the reasoning of Verizon and Charter in In re Subpoena of Internet Subscribers of Cox Commc'ns, LLC & Coxcom LLC., No. 23-00426 JMSWRP, 2024 U.S. Dist. LEXIS 16348 (D. Haw. Jan. 30, 2024)1.

Both the Verizon and Charter decisions turned on the conclusion that the notification described in subsection (c)(3)(A) could not be applied to an ISP that acts as a conduit. The Tenth Circuit has not yet concluded whether 512(h) applies to ISPs that function as a conduit for infringing material.

However, the Fourth Circuit concluded that notifications similar to those described in subsection (c)(3)(A) were sufficient to trigger an ISP's loss of the DMCA safe harbor. See BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 881 F.3d 293, 300 (4th Cir. 2018).

Broadband technology has changed significantly in the two decades since the Verizon and Charter decisions. Service providers offer services that were not even conceived of at the time of Verizon such as public WiFi based upon placing routers in homes of private users.

Some service providers engage in “deep packet inspection” to inspect packets in transit to users to protect their networks or even generate advertisements based upon user data consumption. Service providers can use null routing to disable access to ongoing activity. The P2P application in Verizon was not BitTorrent but the defunct app “KaZaA”. Verizon, 351 F.3d at 1229.

Accordingly, Owner respectfully submits that the Tenth Circuit would likely conclude that 512(h) does also apply to ISPs that act as a conduit to infringing material. Moreover, both the Verizon and Charter decisions do not consider the information location tool section (§512(d)) in making their flawed conclusions that the underlying notification did not satisfy the 17 U.S.C. §512(c)(3)(A) notification requirement.

The Notifications sent by Owner at least satisfy all requirements of §512(d)(3) by providing the identification of the reference or link (IP address 70.161.172.138; Port 34307), the material claimed to be infringing, the activity claimed to be infringing (sharing via BitTorrent) and information reasonably sufficient to permit the service provider to locate that reference or link (IP addresses) so that the ISP can disable access to the infringing material by, for example, null routing the assigned IP address, filtering BitTorrent ports or blocking access to the piracy websites.

Accordingly, Owner respectfully submits that the Tenth Circuit would likely conclude that 512(h) does also apply to ISPs that directly store, cache, or provide links to infringing material.

For these reasons, the undersigned request that the Clerk of the Court expeditiously issue and sign the proposed subpoena and return it to the undersigned via ECF to be served on the service provider.

Motion for Early Discovery vs. DMCA 512(H) subpoena?

This is an important topic to consider in copyright infringement litigation. I wrote about the unique qualities of a DMCA 512(h) subpoena here. The DMCA subpoena is something different from what we typically see in copyright infringement litigation. To learn more about how plaintiffs, such as Strike 3 Holdings, routinely file a lawsuit first, then seek "early discovery" approval from the judge to serve a subpoena on the ISP (such as Lumen, Charter, Cox, CenturyLink, Comcast, etc.) review my blog.

So what it appears Attorney Culpepper has done is file a DMCA 512(h) subpoena instead of going the "early discovery" route. This request asks the court CLERK (not the judge) to issue a subpoena that he can send to the internet service provider, which of course they must comply with. When you file the DMCA subpoena, there is no defense attorney put on notice to fight the request.

These cases get a different case designation in the federal court system (thus, you may see something like 24-mc-80 case instead of what you see with a typical federal case, for example 2:24-cv-00034). The “mc” stands for miscellaneous and the “cv” for civil case.

Usually, A plaintiff alleging willful copyright infringement would file the lawsuit, and then file a motion for early discovery, which is a bit different, because with this approach, it is a JUDGE that has to approve the subpoena (not a CLERK). It is rumored some plaintiffs may be having some problems getting early discovery motions approved, so this filing of a DMCA 512(h) subpoena may be a new strategy in the copyright lawyers toolbox.

Realize, the CLERK will routinely sign the requests for DMCA subpoenas, and the plaintiff will then be off to the races and able to get all the names and numbers for the ISP account holders, and then be able to go after them for settlements. In a way, it is like a quicker short cut to go after infringers, and does not need judge signoff. This might be a new trend, we will see. Once they have the subpoena in hand they serve it on the ISP, the ISP then informs the consumer that they can challenge it (ex., file a motion to quash the subpoena) but it is RARE these would ever be granted, putting the Plaintiff in the settlement driver's seat. Here is what the notice from the ISP to its customer might show:

The Court granted the subpoena, now what?

If you receive a notice from your ISP or a demand from legal counsel to settle your case, the first thing you should do is call legal counsel to discuss. There are a lot of open questions that need to be resolved. Don't panic, don't destroy evidence. These are NOT criminal matters and instead are merely attempts either get you to stop dowloading, viewing, and sharing protected copyright content and likely the Plaintiff counsel will seek compensations. Depending upon your financial condition, this could be minimal on up to several thousands of dollars or more. Realize, their firm will likely seek to learn who the infringer in the household is (many times the subscriber to the internet account is not actually the downloader.