Major Labels v. Backbones

I was looking at the text of the DMCA and came across the following which makes me much less optimistic that a court will toss out the RIAA's request for an injunction:

    Section 512(j)(1)(B) If the service provider qualifies for the
        limitation on remedies described in subsection (a [Limitation
        for Transitory Communications]), the court may only grant
        injunctive relief in one or both of the following forms:

       (i) An order restraining the service provider from providing
           access to a subscriber or account holder of the service
           provider's system or network who is using the provider's
           service to engage in infringing activity and is identified
           in the order, by terminating the accounts of the subscriber
           or account holder that are specified in the order.

      (ii) An order restraining the service provider from providing
           access, by taking reasonable steps specified in the order
           to block access, to a specific, identified, online location
           outside the United States.

However, the following section may offer some hope:

    Section 512(j)(2) Considerations.-The court, in considering the
        relevant criteria for injunctive relief under applicable
        law, shall consider-

      (A) whether such an injunction, either alone or in combination
          with other such injunctions issued against the same service
          provider under this subsection, would significantly burden
          either the provider or the operation of the provider's
          system or network;

      (B) the magnitude of the harm likely to be suffered by the
          copyright owner in the digital network environment if
          steps are not taken to prevent or restrain the infringement;

      (C) whether implementation of such an injunction would be
          technically feasible and effective, and would not interfere
          with access to noninfringing material at other online
          locations; and

      (D) whether other less burdensome and comparably effective
          means of preventing or restraining access to the infringing
          material are available.

I think a backbone provider could argue (A) that a requirement that it block a site would be a significant burden unless all other backbone providers are also required to block the same site, (C) that blocking a single IP address or even a small range of IP addresses isn't likely to be effective for very long and blocking larger IP address ranges or an entire AS is likely to interfere with access to noninfringing material at other online locations, and (D) that at least attempting to work with the network provider that is actually providing service to the infringing site or working through more traditional international copyright enforcement mechanisms are less burdensome and possibly more effective means of preventing access to the infringing material.

    -Jeff