In re Maximized Living v. Google

Citation
In re Maximized Living, Inc. v. Google, Inc., 2011 WL 674017 (N.D. Cal. Dec. 22, 2011) (full-text).

Factual Background
Maximized Living, Inc. is the registered owner of copyrights on chiropractor “scripts.” These scripts were posted by a John Doe defendant on an internet blog hosted by Google, Inc. The Plaintiff filed a “Request for Identity of Infringers Pursuant to 17 U.S.C. § 512(h),” a provision of the Digital Millennium Copyright Act which provides for the issuance of subpoenas in certain circumstances to enable copyright holders to ascertain the identity of accused infringers. A subpoena was issued to Google demanding:

"All documents and electronically stored information reflecting the identity of the person or persons who posted content at http://maximizedlivingbodybygod.blogspot.com/2009/05/maximized-living-scripts.html, including but not limited to their name, email address, IP address, street address, and telephone number."

John Doe filed a motion to quash, which was granted because the subpoena did not fully comply with the requirements of section 512(h) and because the subpoena sought more information than that which was sufficient to identify the accusing infringer. John Doe’s attorney subsequently notified the Plaintiff that the allegedly infringing material had been removed and Plaintiff filed a second Request. John Doe’s second motion to quash was granted because there was no infringing activity at the time of notification of the Request.

A copyright owner’s request for subpoena pursuant to § 512(h) must be accompanied by the notification described in subsection (c)(3)(A). The Doe defendant in the instant case argued that the notification in support of Plaintiff’s motion did not comply with subsection (c)(3)(A) because it did not identify the material “that is to be removed or access to which is to be disabled,” due to the fact that the infringing material was removed at the time of the second Request.

While there is no case law that specifically addresses the question of whether a copyright owner may request subpoena to obtain information regarding only current infringing activity, the court determined that the present tense language in the statute, as well as the “take-down” procedures, imply that subpoenas should only issue in the case of current infringing activity.