The Digital Millennium Copyright Act (“DMCA”) provides a statutory scheme for copyright holders to notify internet service providers of the existence of allegedly copyrighted material on their servers. A “safe harbor” is provided to service providers who remove or disable access to allegedly infringing material following receipt of a DMCA notice. The copyright holder may wish to pursue the parties who placed the material with the service provider so the DMCA also provides that a copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer.
Barry Rosen obtained a subpoena based on approximately 92 such notifications emailed to eBay regarding allegedly infringing content posted by 61 eBay usernames for dates ranging from January 5, 2012, to March 9, 2015. The subpoena sought information regarding the persons using the 61 identified eBay usernames. eBay challenged the subpoena using a motion to quash filed with the court. According to eBay, upon receipt of each notification, eBay investigated the identified listings and disabled access to them. By the time the subpoena was received by eBay on March 27, 2015, eBay asserts that no relevant infringing material pertaining to those notifications was available. Thus, eBay asserted that the subpoena was invalid because at the time it was obtained and served, access to the allegedly infringing materials had been removed.
Relying on Section 512(h)(5 ) of the DMCA the court found that a DMCA subpoena is valid whether served simultaneously with a satisfactory DMCA notification or after a satisfactory DMCA notification is served. A satisfactory DMCA notification requires that the allegedly infringing material is present at the time the notification is served. The subpoena is valid and enforceable regardless of whether the provider acts in response to the notification. By responding to the takedown notice, the provider gains the safe harbor. The provider’s safe harbor does not shield the alleged infringer.
After considering the scope of the information requested in the subpoena, the court decided that eBay should produce information sufficient to identify the alleged infringers and ordered eBay to produce to Rosen the name, last known address, last know telephone number, any electronic mail addresses associated with each account from January 1, 2012, to the date of the subpoena and any logs of Internet Protocol addresses used to access the subject accounts from January 1, 2012, to the date of the subpoena.
The take away to ISP’s and others in the position of eBay is that you can’t protect your customers and comply with the law too. If you have the information requested by a party like Russo, you will have to divulge it.