Ordinarily, serving a subpoena to identify an anonymous internet poster requires first filing a lawsuit. In fact, we have published several posts about using subpoenas to identify unknown authors of internet defamation and have explained that the first step in the process is filing a complaint against the unknown poster.
There is, however, a procedure pertaining to copyright law, in which a copyright owner can potentially identify an alleged infringer without filing a lawsuit and without a judge’s signature: the DMCA subpoena.
Digital Millennium Copyright
The DMCA—short for the Digital Millennium Copyright Act—is a statutory mechanism (17 U.S.C. § 512) that copyright holders can use to notify online service providers of alleged copyright infringement.
The DMCA offers “safe harbors,” limiting the liability of service providers for third parties’ copyright infringement if they remove or disable access to copyright infringement in response to DMCA takedown notices.
Service providers (defined by § 512(k)(1)) include a number of different types of entities. The elements of a proper DMCA notification are listed at §512(c)(3). Various entities also list them in their’ legal/copyright policy sections (such as on the websites Ripoff Report and Glassdoor).
Filing a DMCA Subpoena
A copyright holder, while not needing to file an actual lawsuit to serve a DMCA subpoena, must nevertheless open a miscellaneous matter with a federal district court. Once a copyright holder opens a matter, the copyright holder can request that the clerk issue the subpoena.
Prior to—or contemporaneous with—filing the proposed subpoena and supporting documents with the court clerk (described further below), the copyright holder should send a DMCA takedown notice to the service provider.
It is important to note that a DMCA takedown notice issued prior to serving the DMCA can result in the removal of the infringing content, without affecting the validity of the subpoena. However, getting infringing content removed may not precede the sending of the DMCA notification.
In Maximized Living, Inc. v. Google, Inc., 2011 U.S. Dist. LEXIS 147486 (N.D. Cal. Dec. 22, 2011), the court held that, where the allegedly infringing material was removed before the notification was served, the subsequently-issued subpoena was unenforceable.
Last year, eBay—in an attempt to quash a DMCA subpoena—tried to argue that the allegedly infringing material at issue (which had been removed, in response to proper DMCA takedown notices) needed to still be active for the subpoena to be valid.
However, the court ruled that DMCA subpoenas are enforceable whether served at the same time or after the copyright holder sends a satisfactory notification to the service provider; the infringing material simply must be “present at the time the notification is served.”
The actual request that must be filed with the clerk in order to be able to serve a DMCA subpoena shall include:
“(A) a copy of a notification described in section (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.”
Regarding section 512(h)(2)(C), this essentially states the DMCA subpoena’s purpose must be limited to obtaining information to enforce the copyright. It appears to be unsettled, however, how a court might handle a DMCA subpoena that identifies an alleged copyright infringer who also allegedly committed a tort (distinguishable from two very separate instances of alleged copyright infringement and defamation committed by two different people, for example).
But in short, if an attorney is acting on the copyright holder’s behalf, he or she will want to prepare the subpoena, draft a short declaration from himself or herself that satisfies § 512(h)(2)(C) and then attach a copy of the notification as an exhibit. The attorney can then present the packet of information to the clerk for his or her approval.
Upon obtaining the clerk’s signature, the attorney for the copyright holder can serve the subpoena on the service provider like any other subpoena.
According to section (h)(5): “Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.”
Note that courts have held 512(h) and DMCA subpoenas only apply to service providers storing copyrighted material (not just connecting to it).
While the DMCA subpoena is not commonly utilized (perhaps largely because many are unaware of the statute and process), it is certainly an effective means for copyright holders to efficiently identify copyright infringers.
Once a copyright holder identifies an infringer—based on the DMCA subpoena to the relevant website, webhost or other service provider—the copyright holder can take action against him or her.