Unmasking Online Infringers: The Pros and Cons of the Underutilized Section 512(h) Subpoena

 

 

 

 

 

 

Most copyright owners know that if copyrighted content is posted on the web without permission, a DMCA takedown notice can be used to get the content taken down, but what can a copyright owner do if the website owner’s identity is concealed or unknown?

The Digital Millennium Copyright Act provides copyright owners with some useful tools in addressing the problem of online infringement. An independent musician, photographer, or blogger–even one that would never think of filing a costly infringement suit–often will try to at least get infringing copies of their works taken off other websites. Doing so can prevent further unauthorized copying; and often when the copyrighted material is posted on an unauthorized website, it is posted without proper attribution, preventing the author from getting proper credit for the work.

Takedown Notices

Takedown notices can be effective in getting infringing content taken offline. Takedown notices are most effective when the poster of the infringing content is not also the owner of the website where it is posted. For example, a takedown notice is very effective if a copyright owner sees protected works posted on Facebook or Youtube. When a takedown notice is sent to the site owner, the site owner is supposed to remove the infringing content or the site owner can face liability for the infringement. Upon receipt of a takedown notice, the site owner is also supposed to notify the poster of the content of the takedown and give it the opportunity to respond.

However, when an infringer posts the content on its own personal website, a takedown notice is usually not particularly effective. This is because the poster already faces liability for infringement, so the threat of liability as a site owner makes little difference. When this occurs, the copyright owner’s first instinct is to check the domain whois registry to figure out who the owner of the site is. Increasingly, however, site owners are utilizing domain privacy services (such as Domains By Proxy), which conceal the identity of the domain owner from public view.

Subpoenas and the Section 512(h) Subpoena

A subpoena is a court order to a person or company to appear to provide testimony or to provide certain documents or information. Typically, an attorney or litigant is not able to serve a subpoena until after a lawsuit has been filed. This presents a fairly significant barrier to entry, particularly in cases where the copyright owner is still evaluating whether it is even worth their time and money to pursue the infringer through litigation.

The Digital Millennium Copyright Act contains a somewhat unique provision in Section 512(h). This provision authorizes a court to issue a subpoena to identify an online infringer even if no lawsuit has been filed, provided that the copyright owner follows the strict requirements of Section 512(h). This allows a copyright owner to get information that would otherwise only be available to it after filing a costly lawsuit, at relatively low cost. Once the information is obtained, the copyright owner can proceed with sending a cease and desist letter or other pre-litigation communications to the site owner, in hopes of resolving the dispute and getting the infringing content removed from the internet without the cost of a full lawsuit.

In this way, a Section 512(h) subpoena can be an effective tool in identifying online infringers in cases where a takedown notice cannot be utilized because the infringer is also the site owner or the site owner otherwise cannot be identified. Unfortunately, occasionally a copyright owner will receive a subpoena response revealing that the infringer is based in another country (outside of the jurisdiction of the US Copyright laws) or that the domain was fraudulently registered using a false name or other false information. Nevertheless, in many cases, the Section 512(h) subpoena is a useful tool for copyright owners, and one that many attorneys are unaware of.

 

As in all areas of the law, if you are looking to enforce your copyright rights online, you should discuss the issues with an attorney specializing in that area of law.

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