In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.
What is alarming about this case is that Volkswagen appears to have used the controversial "administrative subpoena" provision of the Digital Millenium Copyright Act (DMCA) to force YouTube to reveal the identity of its user. Under this provision of the DMCA, a copyright owner can request from the clerk of any U.S. district court that a subpoena be issued to a "service provider" for identification of an alleged infringer. See 17 U.S.C. 512(h)(1). If the copyright owner supplies the necessary paperwork and signed avowals, the clerk must "expeditiously issue" the subpoena.
Before Congress enacted the DMCA, copyright owners who wished to discover the name of a putative infringer had to first file a lawsuit against a "John Doe" and then request permission from the court to issue an ex parte subpoena to the service provider seeking John Doe's true identity. Now, copyright owners can simply dash off a DMCA administrative subpoena that the clerk has no discretion to deny -- and which requires no showing that the copyright holder's claim has merit.
What about a user's anonymity? While there is a longstanding tradition of anonymous speech in the U.S., the DMCA provides no protection to the anonymous user -- who, after all, is only alleged to be an infringer -- and doesn't require that the individual be given any notice whatsoever that his or her identity is about to be disclosed pursuant to a court ordered subpoena.
Subpoenas seeking to unmask anonymous speakers on the basis of alleged copyright infringment highlight the potential conflict between copyright law and First Amendment protections for anonymous speech on the Internet. While courts have held that the First Amendment protects the right to speak anonymously on the Internet, see, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005); Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001); McMann v. Doe, 460 F. Supp.2d 259 (D. Mass. 2006), this protection is not absolute. For example, it does not shield defamatory speech or other "unprotected speech."
To adequately balance an individual's interest in anonymous speech with a plaintiff's interest in a legal remedy for the effects of non-protected speech, courts often require that the plaintiff must do something more than merely allege an injury. In the defamation context, for example, courts have required plaintiffs to show some likelihood of success on the merits of his or her claim before requiring disclosure of the speaker's identity. See, e.g., Cahill, 884 A.2d at 458-61; Dendrite v. Doe, 775 A.2d 756, 771-72 (N.J. Super. Ct. App. Div. 2001). Section 512 imposes no similarly heightened showing in the case of DMCA subpoenas, which leaves open the possibility of abuses that impinge upon citizens' First Amendment right to speak anonymously.
This exact issue has not come up squarely before. Most DMCA subpoena cases involve peer-to-peer file sharing, and judges have not found the speech aspect of anonymous downloading to be compelling. The one court to squarely address the issue found that using peer-to-peer file copying networks to download and distribute sound recordings qualified as speech, but "only to a degree." Sony Music Ent. Inc. v. Does, 326 F. Supp.2d 556, 564 (S.D.N.Y. 2004).
The situation might well be different in a case like that of the Volkswagen video, where there may be a strong claim to fair use -- parody is one of the recognized categories found in Section 107 of the Copyright Act, and the critical message of the video as it has been described could make it a transformative use. It would be more difficult to make a showing of copyright liability under these circumstances. (We will be addressing fair use in detail in our forthcoming Legal Guide, but for now you can visit Stanford's helpful Copyright & Fair Use page for more information.)
It is important to remember that fair use is generally regarded as the doctrine that relieves -- at least to some degree -- the tension between copyright and the First Amendment. The fact that the DMCA's adminstrative subpoena provision provides no express recognition of fair use nor requires notice to the anonymous user so that he or she can seek to have the subpoena quashed effectively excises this important doctrine when it is most needed.