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California DMCA Facebook Subpoena lawyer for unmasking copyright infringers identity!

Posted by Steve Vondran | Dec 26, 2019 | 0 Comments

How to file a DMCA "unmasking" subpoena in California to stop facebook infringers! #FacebookSubpoena #TwitterSubpoena #RedditSubpoena #YouTubeSubpoena

California DMCA subpoena attorney

 

Introduction

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

SF DMCA subpoena atty

 

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.—

 
(1) Request.—A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
 
(2) Contents of request.—The request may be made by filing with the clerk—
 
(A) a copy of a notification described in subsection (c)(3)(A);
 
(B) a proposed subpoena;
 
and
 
(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.
 
(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.
 
(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.
 
(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.
 
See below for a sample request to disclose identity.
 

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:

ATTACHMENT A

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! 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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