January 11, 2012
Intellectual Property Alerts

DMCA Subpoenas Limited to Currently Infringing Activity
by Cyrus Wadia

Even subpoenas under the Digital Millennium Copyright Act ("DMCA") to identify anonymous posters of copyrighted materials have limits. A Magistrate Judge in California's U.S. District Court for the Northern District recently quashed a copyright owner's attempt to subpoena the identity of an anonymous alleged infringer because the content at issue had been deleted before the subpoena's issuance date. In re Maximized Living, Inc. v. Google, Inc., No. C11-80061 MISC CRB (EDL) (U.S.D.C., N.D. Cal. Dec. 22, 2011) [Order Granting Motion to Quash and Denying Motion for Order to Show Cause].*

Maximized Living, Inc. ("MLI") owns copyrights to chiropractor "scripts" that paying chiropractors may use during their treatment sessions.  When an anonymous blogger published the scripts on a blog hosted by Google without authorization, MLI filed a Request for Identity of Infringers Pursuant to DMCA 17 U.S.C. § 512(h) to permit it to ascertain the identity of the accused infringer and issued a related subpoena to Google. The District Court initially rejected the request due to filing irregularities, but the alleged infringer removed the content at issue regardless.  Five months later, MLI filed an amended Request to Identify, seeking the same information.

The District Court again rejected the request, but this time on different grounds. The Court held that “the subpoena power of §512(h) is limited to currently infringing activity and does not reach former infringing activity that has ceased and thus can no longer be removed or disabled.” The Court relied one of the required elements for notification under the DMCA: "Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material." (Emphasis added.) As a practical matter, the Magistrate Judge stated, past infringing activity cannot be remedied by the notice and takedown provisions of the DMCA because the materials have already been taken down.

The Magistrate Judge noted that to allow identification of alleged infringers in such a situation would essentially create a new remedy for past infringing material, and held that the plain language of the DMCA predicates subpoena requests on current, not past, infringing activity.

*A Motion for Relief from the Magistrate Judge’s Order was filed on January 9, 2012 by Maximized Living, Inc.
***Mr. Wadia recognizes Jong Cho's assistance in the preparation of this alert.
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