How to file a DMCA "unmasking" subpoena in California to stop facebook infringers! #FacebookSubpoena #TwitterSubpoena #RedditSubpoena #YouTubeSubpoena
So, you caught someone infringing your intellectual property rights on facebook (for example, displaying your copyrighted photo, image, video, film, illustration, song, music or other copyrighted work). You want this to STOP immediately, but you do not know who the person is (the infringer) because they use a screen name, handle, or account name that does not identify them. What can you do as an artist or business owner? For one, you can issue a DMCA takedown notice to Facebook (or YouTube, Twitter, Vimeo, or Reddit for example), and then you can seek to "unmask" their hidden identity with a DMCA unmasking subpoena.
Once you have their contact information, you can decide what you want to do. Seek a settlement? File a lawsuit? Let it go.
PODCAST: Listen to IP Lawyer Attorney Steve® explain the DMCAS subpoena process
17 U.S.C. § 512(h) (the “DMCA Subpoena”)
Here is the section of the Digital Millennium Copyright Act that discusses the subpoena:
(h)Subpoena To Identify Infringer.—
General DMCA subpoena "UNMASKING" process - (may vary by Court and social media platforms may have their own rules and policies that need to be followed)
Here is a look at the general "unmasking" process.
1. Send a DMCA takedown notice to facebook (or other social media platform) to put the alleged infringement claim in writing and to get the content taken down. This will usually trigger a right for the opposing party to disagree and file a counter-notification. Assuming no response, the copyright-infringing content will usually be pulled down.
2. File with the Clerk of the Court a DMCA 512(h) DMCA subpoena petition request
3. Provide a declaration from counsel that the takedown was filed and that the subpoena is only being sought to obtain identifying information and will be used for the purpose of enforcing IP rights. For example:
"The purpose for which this DMCA Subpoena is being sought is to obtain the identity of an alleged infringer or infringers and such information will only be used for the purpose of protecting XXXX's copyright interests under Title 17 of the United States Code."
4. Provide a proposed subpoena to the Clerk for signature
5. Provide a copy of your takedown notice as an exhibit to your DMCA subpoena petition
The Clerk of the Court will issue the subpoena if everything is proper and you can then serve the subpoena on facebook per the instructions on their website:
Account Information"Facebook may provide the available basic subscriber information (not content) where the requested information is indispensable to the case, and not within a party's possession upon personal service of a valid subpoena or court order and after notice to affected account holders.Your subpoena or Court order must be directed to the entity mentioned in the Terms of Service that are applicable to your use of the Facebook service (i.e. Facebook Ireland or Facebook, Inc., depending on where you are domiciled meaning if serving the subpoena on Facebook, Inc., the subpoena must be a valid federal, California or California domesticated subpoena, addressed to and served on Facebook, Inc. If serving Facebook Ireland Limited, the subpoena or court order must be addressed to and served on Facebook Ireland Limited.”).Any such subpoena or court order should be limited in scope to seek basic subscriber information only, and set out the specific accounts at issue by identifying them by URL or Facebook user ID (UID). Names, birthdays, locations, and other information are insufficient."
Can Facebook Provide me a Copy of the Infringers Posts (Content)?
Generally, NO. The reason for this is the Online Stored Communications Act. As facebook notes:
Account Contents"Federal law does not allow private parties to obtain the content of communications (example: messages, timeline posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et seq. Parties to litigation may satisfy party and non-party discovery requirements relating to their Facebook accounts by producing and authenticating the content of communications from their accounts and by using Facebook's "Download Your Information" tool, which is accessible through the Settings drop down menu. Facebook does not respond to requests to disclose information that are accompanied by purported user consent because Facebook account holders may access, produce and authenticate information from their accounts.If a person cannot access their content, Facebook may, to the extent possible, attempt to restore access to deactivated accounts to allow the person to collect and produce their content. However, Facebook cannot restore account content that has been deleted."
What type of information can you ask for in your subpoena petition?
Here is a sample request for the online service provider to disclose the identity of potential copyright infringer:
DOCUMENTS TO BE PRODUCED UNDER DMCA SUBPOENA
Dear recipient, the Court has ORDERED you to produce the following:
(1) All identifying information for the actual owner/registrant/operator(s) of the user name “BADBOY” (whose content you host) from any and all sources, including but not limited to billing or administrative records that prove the name(s), address(es), telephone number(s), email address(es), account number(s), and any other electronic or physical documents identifying said owner/registrant/operator(s).
For more information contact a California Social Media Subpoena Law Firm
We can help with "unmasking" subpoenas, DMCA takedown notices and responses (film, photo, music software), counter-notifications, fair use opinions, federal court infringement and injunction lawsuits (we have appeared in almost 200 federal court lawsuits) - amongst the most of any California law firm.
We have offices in San Francisco (Northern District of California), Santa Monica and Newport Beach (Central District of Cal), and San Diego (CA Southern District). We also have an office in Phoenix, Arizona.
We may be able to offer a low flat rate fee for non-litigation cases. Call us at (877) 276-5084 or email us through our contact form.
There is no substitute for experience when it comes to copyright law!