![\"dmca-subpoena1\"](\"https:\/\/torrentfreak.com\/images\/dmca-subpoena1.png.webp\")
<\/picture><\/center> <\/p>\n\u201cThe request is overbroad, unsupported by individualized allegations of infringement, and improperly seeks to unmask Movant, who is associated only with two of the multiple listed domains, and others through a mass investigatory request with no judicial oversight,\u201d the motion continued.<\/p>\n
Noting that proof to show GoDaddy had even been served was absent from the docket, John Doe argued that a requirement to issue a narrowly targeted DMCA notice in advance of obtaining a subpoena had not been met. Instead, the effort was described as a \u201cphishing expedition\u201d lacking specificity, while exceeding the limited scope of\u00a0section 512(h)<\/a>\u00a0of the DMCA.<\/p>\n \u201cNo lawsuit is pending, and the court has not made any determination of good cause or necessity. The absence of pending action weighs heavily in favor of quashing,\u201d the motion continued, adding that disclosure of identity would seriously undermine privacy, especially in the event domains are used for expressive content.<\/p>\n \u201cCourts have long protected anonymous speech from premature unmasking,\u201d John Doe added.<\/p>\n A battle over First Amendment rights would certainly complicate matters, but only in the event the subpoena survived the basics. Focusing on the trademark allegations in the initial complaint to GoDaddy, John Doe\u2019s motion to quash pointed out that since trademarks are not copyright-protected works, a prima facie case of copyright infringement may not have been made out.<\/p>\n Tamaris filed its opposition to John Doe\u2019s motion to quash on August 15, providing proof that while GoDaddy had been served in a timely fashion, John Doe\u2019s motion to quash wasn\u2019t timely at all.<\/p>\n Filed way beyond the June 16 return date, the motion failed to satisfy the legal standard, so it should be denied, Tamaris informed the court.<\/p>\n The case was referred to Chief Magistrate Judge Timothy J. Sullivan who weighed arguments from both sides in forming his memorandum opinion handed down on December 11. The Judge wrote that a hearing to determine the outcome of John Doe\u2019s motion would not be necessary.<\/p>\n Judge Sullivan examined four key disputes before ruling on John Doe\u2019s motion to quash.<\/p>\n Local Rule 104.7 requires counsel to make a \u201creasonable effort\u201d to resolve discovery disputes. The parties are required to meet in person or otherwise communicate for a reasonable time to demonstrate a good-faith effort to resolve disputes.<\/p>\n Since that didn\u2019t happen, John Doe argued that the DMCA subpoena should be quashed. The Court disagreed. The rule only applies to disputes arising between parties to litigation.<\/p>\n \u201cThis is not the case here, as a DMCA subpoena is a prelitigation subpoena designed to facilitate disclosure of identifying information when there is no pending lawsuit,\u201d Judge Sullivan writes.<\/p>\n \u201cThe Court is unpersuaded that Movant\u2019s failure to comply with Local Rule 104.7 is a basis to deny the Motion.\u201d<\/p>\n Judge Sullivan notes that for a motion to quash to be considered \u2018timely\u2019, it should be filed prior to the subpoena\u2019s return date. While John Doe\u2019s motion was filed a month after that date, the delay wasn\u2019t his fault.<\/p>\n GoDaddy was served on June 3 and required to produce information by June 16. Yet it took until July 25 to notify John Doe, who then took just five days to file his response on August 1. Since Tamaris wasn\u2019t prejudiced by the delay, the Court excused the motion\u2019s untimeliness.<\/p>\n John Doe\u2019s claim, that the DMCA subpoena exceeded the scope of Section 512(h) by attempting the \u201cmass unmasking\u201d of over 100 domain owners \u201cwithout an individualized showing of infringement,\u201d was rejected by the Court.<\/p>\n Not only does the DMCA place no limits on the number of identities revealed per subpoena, the Judge explained, there are no requirements for supporting evidence or an individualized showing of infringement. Tamaris\u2019 notification to GoDaddy was sufficient so the DMCA subpoena was issued accordingly.<\/p>\n John Doe argued that Tamaris\u2019 need for discovery carried less weight than his right under the First Amendment to engage in anonymous speech. Tamaris argued that John Doe\u2019s personal details receive no protection under the First Amendment.<\/p>\n The Court found no guidance on the issue in relevant case law but found various aspects of the case sufficient to reach the following conclusions:<\/p>\n \u2022 Tamaris did enough to show a prima facie case of copyright infringement \u2022 How use of gaming software constitutes expressive conduct was not explained. Concluding that John Doe\u2019s identifying information is not a \u201cprotected matter\u201d under\u00a0Rule 45(d)(3)(A)(iii)<\/a>\u00a0and with most factors favoring disclosure, John Doe\u2019s motion to quash was denied, bringing the\u00a0matter to a close<\/a>.<\/p>\n Judge Sullivan\u2019s Memorandum and Opinion, is\u00a0available here (pdf<\/a>)<\/em><\/p>\n Source: \u00a0Case referred to Chief Magistrate Judge<\/h2>\n
Memorandum Opinion<\/h2>\n
Timeliness of Motion to Dismiss<\/h2>\n
Scope of DMCA\u2019s Section 512(h)<\/h2>\n
First Amendment Fails to Protect<\/h2>\n
\n\u2022 The DMCA process is the only means for Tamaris to identify copyright infringers
\n\u2022 The personal information requested by Tamaris was sufficiently specific<\/em><\/p>\n
\n\u2022 Doe engaged in \u2018commercial\u2019 speech with minimal First Amendment protection
\n\u2022 First Amendment can\u2019t be used as cover to infringe intellectual property rights
\n\u2022 When the free speech at issue is alleged copyright infringement, a customer\u2019s privacy interest in contact information associated with an IP address is \u201cminimal at best\u201d<\/em><\/p>\n![\"TorrentFreak\"](\"http:\/\/worldjusticenews.com\/news\/wp-content\/uploads\/2016\/11\/torrentfreak.png\")
<\/a> TorrentFreak.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"