The passing of the Digital Millennium Copyright Act¹ (“DMCA”) in 1998 was, in one sense, a vindication of the rights of copyright holders in pursuing individual copyright infringers.²  The DMCA provides a mechanism for rights holders to determine the identity of an account holder when an account holder’s IP address is involved in infringing activity.³  However, in another sense, Congress’s passing of the DMCA harmed copyright holders by protecting intermediaries that otherwise could have been found to be secondarily liable for copyright infringement.⁴  Under the DMCA, an Internet Service Provider (“ISP”) can avoid secondary liability for the infringing activity of the ISP’s customers through statutory safe harbor provisions.⁵  While the DMCA empowered copyright holders to find and punish individual infringers, it also limited the ability of copyright holders to recover from ISPs. Recently, there has been a shift in judicial thinking concerning copyright holders targeting alleged individual infringers.  Courts have generally made it difficult for copyright holders to litigate against both direct infringers and intermediaries liable under a theory of secondary liability.⁶  This paper examines a slew of recent cases in which courts found that an IP address is not sufficient to identify an alleged online copyright infringer, thus making it much more difficult for a copyright holder to sustain a case against an individual.⁷  This paper argues that, as a result of the courts limiting copyright holders from pursuing alleged individual infringers, that rights holders will once again target intermediaries, specifically ISPs, under a theory of secondary liability.⁸  Further, this paper comments on the renewed possibility of copyright holders successfully holding ISPs liable for secondary infringement, as copyright holders have been unable to do in the past.⁹

Part I lays out the main issues that copyright holders face in pursuing alleged individual online infringers as well as in pursuing the intermediaries that facilitate the alleged online infringement.  Part II discusses a series of cases that weakened copyright holders’ ability to litigate against alleged individual infringers.  Part III of this paper examines how copyright holders reacted to their newly weakened ability to hold individual infringers responsible—namely, by setting their sights on ISPs once again.  Part IV of this paper presents my thoughts concerning copyright holders’ renewed attempts to hold ISPs secondarily liable for the alleged infringements of their subscribers.  The paper ends with a brief conclusion.