By Ben Sternberg
Typically, for a copyright owner to identify and pursue an anonymous infringer on the Internet, he or she must initiate a copyright infringement lawsuit against a “John Doe” and use the discovery process to unmask the defendant’s identity. Although commencing a “John Doe” litigation is appropriate in certain circumstances, it can be an expensive and drawn-out process. Fortunately, a little-known provision of the Digital Millennium Copyright Act (“DMCA”) offers an economical means of identifying anonymous infringers.
Section 512(h) of the DMCA grants copyright owners the power to subpoena an internet service provider in order to obtain “information sufficient to identify” an anonymous infringer. Indeed, all a copyright owner needs to do to obtain a DMCA subpoena is file a formal request with a District Court clerk that includes: (1) a proposed subpoena; (2) a copy of a DMCA takedown notification that is directed at the allegedly infringing content; and (3) a sworn declaration stating that the requested information will only be used for the purpose of protecting rights under U.S. copyright law. Assuming the DMCA subpoena request contains these three items, the clerk is required to expeditiously issue the proposed subpoena.
Because no judge reviews a DMCA subpoena before it is issued and no formal litigation is initiated by filing a DMCA subpoena request, the DMCA subpoena offers a straightforward and low-cost means of identifying an anonymous infringer. Although a number of early court rulings have limited the scope of the DMCA subpoena power, the DMCA subpoena remains useful in obtaining personal identifying information from service providers, such as YouTube, Blogger, and Facebook, that actually host infringing content. In fact, so long as a copyright owner complies with the straightforward statutory precepts, such companies are typically receptive to DMCA subpoena requests and unlikely to move to quash the subpoena.
To be sure, the DMCA subpoena process does not supplant the need to litigate in many instances. But, once the veil of anonymity is lifted through the DMCA subpoena process, many infringers are willing to remove the allegedly infringing content and settle the underlying copyright dispute. Further, even if the copyright owner ultimately decides that he or she must file an infringement lawsuit, the information obtained through the DMCA subpoena can be used to weed out thorny jurisdictional issues and determine the finances of the infringing party. In short, while the DMCA subpoena process is not commonly utilized, it remains an important weapon in a copyright owner’s arsenal and is well-worth the $35 filing fee and accompanying attorneys’ fees.