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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

In re: Subpoena Issued Pursuant To The Digital Millennium Copyright Act To: 43SB.com, LLC

Case No. MS-07-6236-EJL-MHW (D. Idaho, November, 16, 2007)

Magistrate Judge grants in part and denies in part a motion to quash a subpoena issued pursuant to the Digital Millennium Copyright Act (“DMCA”).  The Magistrate Judge denied so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who posted a copy of a letter sent by a lawyer, for which the lawyer had obtained copyright registration, demanding the removal of other anonymous posts from a blog. 

The Court recommended granting so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who made the allegedly offensive posts that counsel sought to have removed in the demand letter in question.

An anonymous individual – acting under the user name “Tom Paine” – posted comments critical of Melaleuca Inc. (“Melaleuca”) and its CEO on the blog 43rdstateblues.com.  Melaleuca’s counsel sent a letter to the blog demanding the removal of Paine’s posts, for which letter he obtained copyright registration.

Paine’s post was not removed.  Instead, a second anonymous individual – acting under the user name “d2” – posted the demand letter on the blog.

Melaleuca responded by sending a Digital Millenium Copyright Act (“DMCA”) takedown notice, demanding the removal of its coprighted demand letter from the blog, with which request the blog complied.

Melaleuca also served a subpoena pursuant to 17 U.S.C. Section 512(h) of the DMCA, seeking the identity of both d2 and Tom Paine.  This motion to quash followed.

The Magistrate Judge denied so much of the motion which sought to obtain the identity of d2.  “Section (h) of the DMCA permits a copyright owner to obtain and serve a subpoena … seeking the identity of a person alleged to be infringing the owner’s copyright.”  Information obtained can “be used only to protect rights to the copyright.” 

To obtain such information, the copyright owner must plead a prima facie case of copyright infringement.   The Court found that Melaleuca had met this requirement by alleging that a work in which it held a copyright registration – its lawyer’s demand letter – had been copied in its entirety and posted on a blog.  As such, the Court held Melaleuca entitled to the identity of d2, as he was the person allegedly responsible for infringing this copyrighted work. 

In reaching this result, the Court rejected the blog owner’s argument that the demand letter was not sufficient original to be entitled to the protections of the Copyright Act. 

The Court granted so much of the motion to quash which sought the identity of “Tom Paine,” who posted the critical comments about Melaleuca which had generated this dispute in the first place.  Discovery of his identity could not be had under a DMCA subpoena, because there was no evidence that he had been involved in the ‘copyright infringement’ at issue, namely the posting of the demand letter in question.   As such, his identity could not be used to protect Melaleuca’s copyright interests, and therefore could not be obtained via a subpoena issued under the DMCA.

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