Most copyright infringement and defamation perpetrators don’t use their real names online. So what’s a person to do if he or she wants to file a lawsuit against an anonymous party? Answer: Start with a John Doe subpoena.
John Doe Subpoena and The DMCA
It’s possible to uncover copyright violators using DMCA takedown provisions outlined in the Digital Millennium Copyright Act (“DMCA”).
The DMCA also streamlines the subpoena process in online intellectual property cases. Typically, in most civil lawsuits against anonymous persons, “John Does” are unearthed during discovery, meaning the lawsuit must have already been filed. But if copyright holders send DMCA takedown notices, they’re able to obtain subpoenas from court clerks without filing lawsuits.
According to 17 USC 512, to secure a subpoena duces tecum, a copyright holder must submit the following things to the appropriate clerk:
- A copy of a notification described in subsection (c)(3)(A);
- A proposed subpoena; and
- A sworn declaration saying the obtained information will only be used for protecting DMCA rights.
If you satisfy all three requirements, the law provides that:
“The clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.”
Free Speech & Copyright John Doe Requests Were Not Created Equal
In some free speech cases, courts have ruled that John Does can preserve anonymity (see Mobilisa, Inc. v. John Doe 1 and The Suggestion Box, Inc.). But in copyright infringement cases, John Doe subpoenas are almost always granted. The reason for this is two-fold.
- Firstly and technically, in DMCA cases, the party being subpoenaed is not the intended defendant, but instead the service provider. Upon notice, service providers are required to “expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena.” The only exception is if they successfully quash the John Doe subpoena. That said, there are legal fees associated with a motion to quash; plus, there’s no real incentive for a service provider to pay for a lawyer in such circumstances.
- Secondly, even if the service provider does shell out money to defend against a DMCA John Doe subpoena for one of their clients, there is no real chance that it will be able to quash it in the face of a valid copyright claim.
Conditions That Must Be Met For A Successful John Doe Subpoena Motion
In Sony Music Entertainment Inc. v. Does 1-40, the Court ruled that identification requests must be upheld if:
- A prima facie case of copyright infringement is made;
- The request for user identifying information is specific;
- The defendants are otherwise unidentifiable;
- The information is needed for a lawsuit; and
- The defendants have no expectation of privacy.
John Does Can’t Stay John Does For Long In Copyright Infringement Cases
In many online infringement — and some Internet defamation — cases, John Does cannot remain John Does for long. Due to the associated costs, ISPs are unlikely to resist DMCA-related subpoena requests.
Hopefully, this has been a helpful summary on responding to John Doe subpoenas. Remember: each case is unique. Seek the advice of a qualified attorney with anonymous online litigation experience.
Mobilisa, Inc. v. John Doe 1 and The Suggestion Box, Inc.
Sony Music Entertainment Inc v Does 1-40