512(h) Subpoena To Identify Infringer
This provides for subpoenas to identify infringers. Part (h)(2)(A) requires that the request to the court include "a copy of a notification described in subsection (c)(3)(A)" (a takedown notice, see above). Note that 512(c)(3)(A)(iii) states that the notice must identify the allegedly infringing material that is to be removed, and provide reasonably sufficient information for the service provider to locate the material residing on its system.
If the OSP is served with such a subpoena after or at the same time as a valid takedown notice, it must expeditiously provide the information required by the subpoena.
OSPs should exercise caution and ensure that they have received a valid takedown notice before disclosing the identities of their customer. It would be very prudent to seek immediate legal advice if a subpoena is received:
Complying with the subpoena would risk liability from the customer if their identity is disclosed based on the improper subpoena.
- when a valid takedown notice hasn't been served
- if the notice doesn't identify any infringing material, as required by 512(c)(3)(A)(iii)
- if either the takedown notice or the subpoena is in any other way not in compliance with the requirements.
- if the material is not on the systems of the OSP but on a computer using it as a connection to the internet. Section 512(a) provides protection for simple transfer of data on an ISP network and that section does not provide for takedown and put back procedures.
In 2003, the RIAA appeared to be seeking subpoenas and serving takedown notices which did not comply with these requirements, notably using the subpoena provisions for 512(a) situations, which don't provide for them. Anyone served with such a subpoena should seek the assistance of a lawyer.
On 20 December 2003, the DSL ISP Verizon prevailed on appeal in its case seeking to prevent the use of this section for transitory network communications, the decision reversing a court order to supply customer details. Case documents , . A further appeal by the RIAA is possible. The appeal de
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