Court Orders Unmasking Subpoena of Alleged Infringers–Baugher v. GoDaddy

October 26, 2021 · by · in Copyright, Privacy/Security

In the DMCA, Congress enabled copyright owners to obtain pre-litigation discovery of alleged infringers (17 USC 512(h)). After sending a takedown notice, the copyright owner can apply for an unmasking subpoena, which the clerk of the court must issue without any discretion or review by a judge. This fast lane is a historical anachronism; it does little to balance the privacy interests of the alleged infringer. Knowing what we know now about the dangers of unmasking subpoenas, I would like to think that Congress would draft 512(h) with more privacy sensitivity today.

512(h) subpoenas rarely produce court opinions because the copyright owners get the subpoena automatically and the services usually automatically comply with the subpoena. This case is unusual because the Doe defendants attempted to quash the subpoena. The court rejects the Doe defendants’ efforts, and it gives us a little more insight about 512(h) along the way.

The copyright owner is Julia Allison Baugher, an author. For unspecified reasons, bloggers reposted some of her works, including an 81 page book proposal, which included a 54 page manuscript draft, and 22 photos. The proposal, manuscript, and 2 photos were previously unpublished and not registered; the other 20 photos were covered by a copyright registration. She sent takedown notices to the blog’s “registrar” (this is the court’s word), GoDaddy, which GoDaddy honored. The bloggers did not submit counternotices. Baugher then submitted a request for a 512(h) subpoena, which the court clerk issued. It’s not clear how the bloggers learned of the subpoena, but they moved to quash it.

The bloggers argued that the subpoena would violate their First Amendment right to speak anonymously. The court says that the First Amendment requires a balancing between the competing interests. Thus, the plaintiff has to show a prima facie case of copyright infringement before the subpoena can be upheld.

Baugher easily established the prima facie case of 106 violations. The bloggers countered with fair use. The court doesn’t see it:

  • Nature of use. The bloggers claimed they posted Baugher’s works for criticism and commentary, but the court says “most of Baugher’s work was posted without substantial comment or criticism by the Does….Posting a work and implicitly inviting comment or criticism
    is the same as simply copying the work; any work made public will almost always inspire an opinion in the reader, but the reader’s implicit opinion is not the same as comment or criticism formed and made by the blogger who copies the copyright-protected work.”
  • Nature of work. The reposted materials were both highly creative and unpublished.
  • Amount taken. The “Does reproduced the materials in their entirety” (tautology alert).
  • Market effect. The bloggers didn’t show any evidence of non-harm. (It’s true that the defense has the burden on fair use, but it’s also problematic to require defendants to prove the negative).

One of the reasons why unmasking subpoenas are so dangerous is that they can be used to impose extra-judicial consequences without any court oversight, such as terminating the employment or public shaming of the unmasked people. The DMCA says the subpoenaed information may be used only for copyright enforcement purposes, but there’s no practical way to enforce this, and I can’t think of anyone who has tried. Nevertheless, the court says the statutory limitation is good enough to address the bloggers’ fears of misuse, so the subpoena must be honored.

Case citation: Baugher v. GoDaddy.com LLC, 2021 WL 4942658 (D. Ariz. Oct. 22, 2021)

UPDATE: In Charming Beats, petitioner, 2021 WL 4991329 (S.D.N.Y. Oct. 27, 2021), the court granted a 512(h) unmasking subpoena despite the fact that the rightsowner did not send proper 512(c)(3) notices. (Which is wild, because it’s trivially easy to comply with 512(c)(3)).

Some prior blog posts on 512(h):