Melaleuca v. 43SB.COM, LLC [1]

43rd State Blues: Democracy for Idaho [2] describes itself as a "website of, by and for Democrats and those who lean towards Democratic, progressive causes." The website offers what it calls a "team blog" service -- users who register for an account can maintain their own personal blog on the site. On of the site's users, going by the pseudonym "Tom Paine," published a post [3] in April 2007 about Melaleuca, Inc. and its CEO Frank VanderSloot. VanderSloot and Melaleuca objected to the post, which, according to court documents, discussed rumors about questionable payments made to a US Senator. On April 6, counsel for Melaleuca sent a cease-and-desist letter [4] to an individual believed to be the administrator of 43rd State Blues, claiming that the post was defamatory and demanding its removal within 24 hours. The next day, an anonymous individual with the user name "d2" posted [5] the cease-and-desist letter on the website.

In late April, Melaleuca sent a DMCA takedown notice [6] to the hosting provider for 43rd State Blues, demanding that the hosting provider remove the April 6 cease-and-desist letter from the website. The hosting provider complied, but Melaleuca was not content to stop there. It served administrative subpoenas issued pursuant to section 512(h) of the DMCA [7] first on the hosting provider, and then on the "reseller" of the account associated with 43rd State Blues. These subpoenas asked for documents and information identitying "those persons who posted the infringing content identified in the Take-Down Notice [sent to the hosting provider], including but not limited to those persons using or associated with the screen names 'd2' or 'Tom Paine' as found at the website 43rdstateblues.com." The hosting provider informed Melaleuca that it had no information other than the name of the reseller of the account. When the reseller recieved a subpoena, 43SB.COM, LLC ("43SB"), the actual owner of the site, contacted Melaleuca through counsel and asked that further communications be directed to his office.

Melaleuca then obtained and served the same DMCA subpoena on 43SB. 43SB filed a motion to quash the subpoena on June 25, 2007, arguing that the subpoena did not comply with the requirements of the DMCA and violated the First Amendment. At oral argument, counsel for 43SB narrowed its objections to two points: (1) that the cease-and-desist letter lacked the originality necessary for copyright protection; and (2) that upholding the subpoena would violate Tom Paine's First Amendment right to engage in anonymous speech because there was not a sufficient connection between Paine and the posting of the cease-and-desist letter.

On December 7, the district court adopted [8] the Report and Recommendation [9] of the magistrate judge (to whom the motion had been referred for decision). The Report recommended that the court grant the motion to quash with respect to Tom Paine, but deny the motion with respect to d2. The magistrate judge rejected 43SB's argument that the cease-and-desist letter was insufficiently original to garner copyright protection, concluding that Melaleuca's registration of the letter with the Copyright Office was a sufficient indication of ownership of a valid copyright for a DMCA subpoena to issue. Since d2 had allegedly posted the cease-and-desist letter, the court upheld discovery of his/her identity. With regard to Tom Paine, however, the magistrate judge concluded that using a DMCA subpoena to uncover his/her identity would be improper because there was no connection between Paine and the alleged infringement (i.e., posting the cease-and-desist letter).

Neither party submitted objections to the magistrate judge's Report, thereby apparently waiving the righ to raise factual and/or legal objections to it on appeal.