Subpoena issued to eBay pursuant to DMCA, seeking to identify alleged infringers, is deemed valid under express statutory language despite eBay’s pre-subpoena removal of allegedly infringing material in response to related DMCA notifications.

Barry Rosen, a photographer, requested the issuance of a subpoena to eBay Inc. under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(h). The Clerk of Court issued the subpoena, and eBay moved to quash, arguing (1) that the subpoena was invalid, because eBay already removed the allegedly infringing material and, thus, there was no infringing activity on eBay’s servers when the subpoena was served; and (2) that the subpoena was overbroad. Rosen argued the DMCA expressly provides for the issuance of subpoenas in the circumstances presented, because there was infringing material on eBay’s website at the time Rosen served the related DMCA notifications under 17 U.S.C. § 512(c)(3).

Pursuant to § 512(h), Rosen filed 92 notifications relating to allegedly infringing content posted through 61 different eBay usernames. Rosen’s subpoena sought identifying information about the individuals using those 61 usernames. eBay disabled access to the allegedly infringing listings after it received the notifications and, by the time the subpoena was served and received, no infringing material relating to the notifications was available on the eBay website.

The magistrate judge first addressed the question of whether, following a “satisfactory DMCA notification,” allegedly infringing material must remain available for a valid subpoena to issue, and answered in the negative. The DMCA allows copyright holders to notify internet service providers (ISPs) of allegedly copyrighted material on their servers, and rewards ISPs that remove or disable access to such allegedly infringing material with a safe harbor from liability. The court agreed with eBay that allegedly infringing material must be available for the notification provision to have any effect, and that a DMCA subpoena in the absence of a “satisfactory notification” is not enforceable. But it disagreed that the case eBay relied on, Maximized Living, Inc., v. Google, Inc., required allegedly infringing material to remain available post-notification in order for a subpoena seeking identifying information about the alleged infringer(s) to be enforceable.

Because § 512(h)(5) expressly provides that (1) a subpoena may be served after the ISP receives the notification(s), and (2) an ISP must disclose information sought by a subpoena “regardless of whether the [ISP] responds to the notification,” Rosen’s subpoena was valid and enforceable. In Maximized Living, the district court reasoned, the notification was not served until after the infringing material was removed, and the subpoena issued on the basis of that notification was invalid. In contrast, eBay did not challenge the validity of Rosen’s notifications—in fact, the content was removed as a result of those notifications. Although an ISP may garner the protection of the safe harbor by responding to the takedown notice, that safe harbor “does not shield the alleged infringer.”

The court did, however, agree with eBay that the subpoena was overbroad because it sought all identifying information relating to the 61 usernames from the time those accounts were established until the present. Such information was more than merely “sufficient to identify the alleged infringer[s],” as provided by the statute. The court ordered eBay to produce certain information sufficient to identify the alleged infringers, from January 1, 2012, to the date of the subpoena.