DMCA Subpoena Fight, Though Unsuccessful, Was 'Creative,' Professor Says

The idea that Digital Millennium Copyright Act Section 512(h) pre-empts unmasking lawsuits against John Doe defendants is "a creative argument, but not a meritorious one," Santa Clara University Director-High Tech Law Institute Professor Eric Goldman blogged Wednesday. Section 512(h) covers subpoenas of service providers for identification of an alleged copyright infringer. Goldman cited Monday's docket 18-cv-00571-EAW decision (in Pacer) by U.S. District Judge Elizabeth Wolford of Rochester, New York, denying a motion to quash a third-party subpoena that adult film producer and streaming service Strike 3 sought against the defendant's ISP for the identity of the John Doe whom Strike 3 accused of BitTorrent piracy of company content. The defendant argued allowing service of a subpoena on a third-party ISP conflicted with DMCA privacy provisions and the Communications Act, but that doesn't acknowledge a Communications Act exception allowing such a subpoena, or that the vast majority of opinions in similar cases have granted leave to serve those subpoenas, Wolford said. She said most Strike 3 suits end in voluntary dismissal after subpoenas are served, but there's no evidence to back the John Doe's claim Strike 3 "is engaging in copyright troll litigation tactics."