512(h) DMCA Subpoena: Legislative History

Posted on 5/01/2015 08:28:00 AM

512(h) DMCA Subpoena – Legislative History in Support of Statutory Construction
The other day I briefly overviewed the trials and tribulations related to seeking a § 512(h) DMCA subpoena.  Courts, including with respect to my own request, routinely interject legal precedent related to Rule 45 discovery request to that of a subpoena request pursuant to § 512(h).  This then results in a misconstruction of § 512(h), and leaves copyright owners with poor clarity with respect to the overall subpoena process.

To clarify the meaning of the subsection, a brief look at the legislative history may be useful.

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512(h) DMCA Subpoena

Posted on 4/30/2015 07:02:00 PM


Recently I took a dive into the murky waters associated with a “DMCA subpoena” or a subpoena pursuant to 17 U.S.C. § 512(h), only to end up in the same spot I started from: nowhere.  My ordeal may be viewed in PACER under 15-mc-00654.

This particular case is related to a Facebook User ID involved with an (alleged) act of infringement against a photographer client and his copyright material.  Though the Page associated with, and presumably “owned by”, the User ID provides contact information associated with a related entity, all attempts to contact the entity were to no avail.

As a result, my Client was forced to consider alternative options to determine the identity of the alleged infringer associated with the Page/User ID, leading to the unenviable task of trying to sort out how to obtain infringer information pursuant to a DMCA subpoena.
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Q and A with Artists: creation, fair use, infringement - fun times!

Posted on 2/19/2015 06:57:00 PM


Follow up Q&A

In a recent post I discussed my experience with Chadwick and Spector and the applicability of (or lack thereof) the ‘transformation’ aspect of fair use to their creative works.  Some additional questions subsequently arose that I wanted to take some time to follow up on.

Is there anything to help artists understand the implication or consequence of using a photograph(s) as a reference for a new works, such as a painting or collage?

Well this goes straight to the heart of the issue I discussed in the post – that, from a legal standpoint, there is no black/white, yes/no, bright line, etc. answer to such a question.  And more poignantly: underlying rights in preexisting works are not meant to stifle creation, but instead inspire it.

That said, I would make a few comments, emphasizing this is from the legal perspective.  Most importantly: if you do not own it, do not use it; if you use it, no matter the fashion, you assume the risk and consequence of doing so.  The risk can be reduced or mitigated by getting permission, such as with a written agreement or a license.  If you cannot determine who owns a copyright, the answer shouldn’t be, “hhmm, must be o.k. to use” – this can be grounds for willfulness.  Instead, move on to another work where the rights can be determined or resort to independent creation.
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Transformation of Art

Posted on 2/10/2015 06:28:00 AM

Transformation of Art: something more than meets an ‘eye’ test.

As I sat here for quite some time trying to think up a catchy title encapsulating something about “transformers” and “more than meets the eye”, I am reminded at just how uncreative I am.  Which only serves to underscore my amazement and appreciation of the artists I work with.

Recently I had the pleasure of working with Laura Spector and Chadwick Gray, the artists behind the compelling Museum Anatomy series and other related pieces of work – their work viewable on the website http://chadwickandspector.com.

I met Laura and Chadwick through unfortunate circumstance, as it turned out a so-called “artist” based in France was reproducing, offering to sell, etc. counterfeit paintings of their Museum Anatomy series via a number of online French galleries.  What I told Laura at the outset is that taking an action here in the US and trying to accomplish a legal result in France would be nothing short of a miracle.  However, through crafty legal work and utilization of the public report site, Copypedia, we were ultimately successful in getting each and every gallery to remove any and all of the infringing content.  Success!
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Losing the ‘Safe Harbor’: No DMCA protection without the ‘D-A’ (Part 2 of 3)

Posted on 2/05/2015 11:07:00 AM
Today I took a look at Square Ring v. U-Stream et al., a not-so recent Delaware case (filed in 2009) just now reaching the stage where the Court is ruling on various motions for summary judgment.  The recent Memorandum provided by the Court is compelling for a couple of reasons, the first of which being Square Ring’s ability to survive U-Streams motion for judgment because of the lack of legal precedent around the meaning of “expeditiously.”

As I mentioned in my last post, proving an act is ‘expeditious’ at pre-trial is a challenging prospect because, as highlighted by other courts, “the inquiry into ‘expeditiously’ was meant to be a factual rather than a legal inquiry.”  This is further compounded by the limited legal authority discussing the matter.
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Sailing the Internet and Finding a DMCA ‘Safe Harbor’ (Part 1 of 3)

Posted on 10/14/2014 04:41:00 PM
Previously I overviewed the DMCA, and applied a limited discussion to its ramifications and impact on various stakeholders, namely the internet at large, copyright owners, and artists.  As generalized in the overview, the main purpose of Section 512 of the DMCA was the provision of a legal mechanism for service providers (e.g., SP’s, ISP’s, OSP’s, etc.) to rely on in exchange for developing the internet, with the greatest benefit being “monetary relief” stemming from various acts of copyright infringement.  However, this benefit is only garnered by qualified SP’s, and there are a number of ways a provider may fail to receive, or otherwise be deprived of, the protection of the DMCA.  In the discussion that follows, I examine how, or really when, a service provider may neglect to perform certain tasks expeditiously.

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Dancing with the DMCA Devil

Posted on 10/01/2014 12:25:00 PM

At its best, the Digital Millennium Copyright Act (“DMCA”) remains a contentious topic for discussion amongst the talking heads and commentators, as well as those personally involved and affected.  For example, professional photographer Alex Wild’s recent article on ars technical, “How rampant online piracy squashed one insect photographer,”[1] as well as videos and even grass root websites, are all devoted to the problems with the DMCA.[2]  While the DMCA helped foster growth of the internet, it was also arguably an immeasurable burden-shifting piece of legislation placed involuntarily onto the shoulders of rights holders.
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