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
The most commonly used method to discover the identity of an copyright violator is the Digital Millennium Copyright Act (“DMCA”). The DMCA allows copyright holders alleging infringement to send a notice to the host server (“service provider”). The service provider then forwards that notice to the person responsible for uploading the material; he or she is given a chance to respond. If the uploader does not respond, the service provider will remove the content.
The DMCA also allows for an easier subpoena process in online intellectual property cases. Usually, lawsuits against an anonymous person, or “John Doe,” must be conducted during the discovery period of a civil action, meaning the lawsuit must have already been filed. If a copyright holder sends a DMCA notice, however, they are able to obtain a subpoena from a court clerk without filing a lawsuit.
According to 17 USC 512, in order to obtain 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 the purpose of 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-related cases, the courts have ruled that John Does can preserve their 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 if a case of copyright infringement is successfully made.
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 a request for identifying information 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.
This may seem like a long list, but all of these elements are almost always fulfilled in copyright infringement cases.
John Does Can’t Stay John Does For Long In Copyright Infringement Cases
In short, 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 request, and even if they did, they would likely fail.
Hopefully this has been a helpful summary on responding to John Doe subpoenas. Remember though: 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