An Anonymous Blogger Is Infringing My Copyright. How Do I Unmask Their Identity?

The U.S. copyright law has a pre-litigation procedure allowing copyright holders to identify alleged infringers through unmasking subpoenas. In this blog post, we discuss the law surrounding these subpoenas and a recent case in which anonymous bloggers tried in vain to quash an unmasking subpoena.  This subpoena procedure is of relevance to creatives policing infringement, and to those wishing to exercise their First Amendment rights anonymously.

The Digital Millennium Copyright Act

As many of you may know, if a copyright holder believes a third party is infringing their copyright online, the copyright holder can issue a Digital Millennium Copyright Act (the “DMCA”) takedown notice to a service provider, requesting that the service provider remove the infringing content. The takedown notice must, among other requirements, include “[a] statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”  17 U.S.C. § 512(c)(3)(A)(v).

The DMCA then allows the alleged infringer a short window of time to send the service provider a counter-notice challenging the take-down notice.  After receipt of a counter-notice, the site host must put back material removed from the site within 14 business days unless the alleged infringement victim files a lawsuit seeking to stop the infringement.

The DMCA also allows the sender of a take-down notice to file a request in federal court for a subpoena directing the service provider to unmask the identity of the alleged infringer. In addition to supplying the court with a copy of the take-down notice and a proposed subpoena, the copyright holder must file a sworn declaration that the subpoena is sought “to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights [under the Copyright law].” 17 U.S.C. § 512(h)(2)(C).

If the submitted materials are in proper form, then the court clerk “shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.” 17 U.S.C. § 512(h)(4). (This means that the subpoena will be issued without any review of the matter by a judge.)  The service provider must then disclose to the copyright holder information sufficient to identify the alleged infringer (to the extent such information is available to the service provider).

Julia Allison Baugher v. GoDaddy

Julia Allison Baugher, also known as Julia Allison (“Allison”) is a writer and a television commentator.  In 2019, Allison learned that a group of bloggers posted her images and her written work (including a book proposal with a pre-publication manuscript) on their blog to invite criticism of it.

Allison sent a DMCA take-down notice requesting GoDaddy.com (“GoDaddy”) remove the allegedly infringing blog posts, and GoDaddy removed the posts. (For unknown reasons, the bloggers did not send a counter-notice to GoDaddy, and thus did not challenge at the take-down notice stage Allison’s attestation of copyright infringement.)

Allison then filed an application in federal court in Arizona for a subpoena directing GoDaddy to reveal to Allison the identity of the bloggers (the “so-called” “John Does”).  The court issued the subpoena and the Does then moved to quash the subpoena. The Does claimed that GoDaddy should not have to reveal the Does’ identities to Allison because that would violate their First Amendment right to speak anonymously. They also claimed they made a fair use of any copyright Allison has in her materials.

In analyzing the matter, the court held that the First Amendment requires a balancing between competing interests.  The court concluded that Allison met her initial burden to make a prima facie showing of copyright infringement.  In particular, the court found that: (i) Allison met her burden to show that her materials qualify as copyrightable expression, and (ii) the Does failed to identify any evidence showing that they did not reproduce Allison’s work and images on their blog.

The court disagreed with the Does’ claim that they made fair use of Allison’s material. While the bloggers claimed that they posted Allison’s works for criticism and commentary, the court found that:

“[M]ost of [Allison’s] work was posted without substantial comment or criticism by the Does….Posting a work and implicitly inviting comment or criticism is the same as simply copying the work; any work made public will almost always inspire an opinion in the reader, but the reader’s implicit opinion is not the same as comment or criticism formed and made by the blogger who copies the copyright-protected work.” 

The court also found that the bloggers did not show that their usage of Allison’s materials did not harm Allison’s market for her copyrighted works.

Because Allison made a prima facie showing of copyright infringement and the Does failed to demonstrate fair use, the court found that “the Does have little, if any, First Amendment protection against disclosure of their identities.”    Thus, the court found that Allison could uncover the Does’ identities. Per the court, “[t]he Does’ fears that …disclosure of their identities will be misused is addressed both by the DMCA itself, which states the identities will only be used for the limited purpose of protecting the applicant’s copyright …. and Allison’s ‘attestation to the same.’”

Take-Away Point

The DMCA contains a powerful tool for copyright owners to uncover the identities of alleged infringers without filing a lawsuit. The Allison case represents an unusual circumstance in which the anonymous parties fought against an unmasking subpoena. Although the Does could not quash Allison’s subpoena, if anonymous actors can make a substantive showing that their use commented on or criticized the other’s copyrighted material, such as by including text analyzing and critiquing the underlying work, perhaps those anonymous actors may be able to convince a court to shield their identities on the grounds of fair use and freedom of expression. 

The Allison opinion also shows that the law provides little oversight in ensuring that copyright holders only use the identifying information to protect their copyright, and courts may well simply take the complaining party at their word that they will honor their statutory obligations.  One need not have much imagination to conjure up scenarios where copyright holders might misuse the unmasking subpoena process to intimidate, shame, humiliate, or otherwise harm those who wish to exercise their First Amendment rights.