IN RE: SUBPOENA OF INTERNET SUBSCRIBERS OF COX COMMUNICATIONS, LLC AND COXCOM, LLC CAPSTONE STUDIOS CORP.; MILLENNIUM FUNDING, INC.; VOLTAGE HOLDINGS, LLC, Pеtitioners - Appellants, v. COXCOM LLC, Respondent - Appellee.
No. 24-3978
United States Court of Appeals for the Ninth Circuit
August 15, 2025
D.C. No. 1:23-cv-00426-JMS-WRP;
OPINION
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
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 tо 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—
The panel addressed, as an issue of first impression, whether the DMCA allows a
The panel held that the district court did not clearly err when it found that Cox acted only as a
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.
OPINION
CHRISTEN, Circuit Judge:
Capstone Studios Corp., a copyright holder, successfully petitioned a district court clerk to issue a subpoena pursuant to
I.
A.
This case concerns
In enacting
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 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 trаckers. A torrent tracker is software that assists in the communication between peers. Torrent trackers monitor which peers have which pieces of the file and
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 сonnection provided by CoxCom, LLC, an Internet service provider (ISP). Capstone petitioned the district court clerk in the District of Hawaii to issue a
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—
Capstone objected to multiple findings and conclusions in the F&R, including the magistrate judge’s legal conclusion that the DMCA does not permit a
We have jurisdiction pursuant to
involved two questions with different standards of review: (1) whether a
III.
The validity of Capstone’s subpoena turns on two issues: first, as a matter of law, whether the DMCA allows a
A.
We have not yet had occasion to address whether a
Subsection 512(a) is materially different from the other primary safe harbors,
By contrast,
With this understanding of
The (c)(3)(A) notification itself must satisfy six requirements.3 One requirement is that the copyright holder
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.”
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 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 coрyrighted music via P2P file sharing programs, such as KaZaA. 351 F.3d at 1231. The parties did not dispute that Verizon acted as a
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
Capstone argues that, despite the lack of a statutory provision requiring a
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
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-namеs-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
difference to the result of the motion for reconsideration because the court considered and rejected the expert’s declaration.
The DMCA does not define the phrase “disable access to” in
Neither Verizon nor Charter specifically grapрled 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 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
Capstone makes several textual arguments to the contrary, none of which disturb our conclusion. First, Capstone points to
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.
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)].
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
Capstone also argues that
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
Capstone’s argument improperly examines these provisions of § 512 in isolation. Reading the statute as a whole,
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.
Finally, Capstone argues that the alternative to a
The matter before us is a discrete question of statutory interpretation. Because
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
The plain text of
A service provider can simultaneously qualify for more than one safe harbor,
Subsection 512(d), titled “Information location tools,” provides a safe harbor when an alleged infringement takes place “by reason of the providеr 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.”
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
Capstone separately challenges certain evidence the district court relied upon when it found that Cox acted only as a
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 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
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
Because Cox’s role in the alleged infringement was limited to that of a
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.