Advanced Copyright Issues on the Internet - Fenwick & West LLP

efall Fatwallet as opposed to its subscribers, and the subscribers’ interest in maintaining theiranonymity was insufficient to invoke standing to a third party such as an ISP to challenge thesubpoena when the ISP had not suffered an injury of its own. The court distinguished theVerizon decision on the ground that in that case, Verizon had refused to comply with thesubpoena and there was a motion to compel, and in any event, the court disagreed with theVerizon decision. The court also ruled that Fatwallet had no standing to assert challenges to thenotice and takedown provisions of Section 512(c), because Fatwallet was suffering no injury as aresult of those provisions. Because the provisions afford only a positive benefit (a safe harborfrom liability), Fatwallet was free to ignore them and no harm would befall it that did not alreadyexist irrespective of the DMCA. 1060Chapel Hill(5) In re Subpoena to University of North Carolina atThe case of In re Subpoena to University of North Carolina at Chapel Hill 1061 followedthe logic of the RIAA v. Verizon and Charter Communications cases and ruled that Section512(h) does not allow a copyright owner to obtain a subpoena for an OSP that acts merely as aconduit for data transfer. 1062 In addition, the court rejected the RIAA’s argument, as did thecourts in the Massachusetts Institute of Technology v. RIAA and Boston College v. RIAA casesdiscussed in Section II.G.6(h)(1) above, that Section 512(h) allows a party to seek a subpoena inany court in the nation for service in any other district. The court noted authority that thesubpoena power of a court cannot be more extensive than its jurisdiction, and that Fed. R. Civ.Pro. 45(b)(2) applies only when a court action or other proceeding is preexisting, which istypically not the case when the subpoena power of Section 512(h) is invoked. Accordingly, theSection 512(h) subpoena must be issued by a court in the district in which the subpoena will beserved. 1063(6) Subpoenas in John Doe ActionsIn the wake of the rulings in the RIAA v. Verizon and Charter Communicationslitigations, copyright owners have turned to filing “John Doe” actions in order to seek subpoenasagainst OSPs who are mere conduits, and have had success in obtaining subpoenas requiringdisclosure of information about subscribers allegedly engaged in copyright infringement throughthe OSP’s service.For example, in Electra Entertainment Group, Inc. v. Does 1-6, the court allowed theplaintiffs to take immediate discovery on the University of Pennsylvania to obtain the identity ofeach Doe defendant by serving a Rule 45 subpoena seeking the name, address, telephonenumber, email address, and Media Access Control (MAC) address for each defendant. The courtrequired, however, that the Rule 45 subpoena instruct the University of Pennsylvania to1060 Fatwallet, Inc. v. Best Buy, No. 03 C 50508 (April 12, 2004) (memorandum opinion).1061 367 F. Supp. 2d 945 (M.D.N.C. 2005).1062 Id. at 952-56.1063 Id. at 956-58.- 243 -