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Pornhub users beware, your identity may be disclosed by a DMCA subpoena

Sep 14th, 2017 | By | Category: Internet Law

Copyright Watchdog – Adult Pornography at Issue

copyright lawyer DMCA

Actual Subpoena filed in the Court case. 

Introduction

The news is getting out about Pornhub and their recent DMCA court case.   Foshan Ltd believes some of its copyrighted goods are being infringed on pornhub.com users who are uploading infringing content onto the website.  Foshan seeks to identify the uploaders by name and address and has filed a “DMCA subpoena” in the Central District Court of California.  Foshan is represented by Glaser Weil law firm.

Is Pornhub legal?

Viewing adult pornography is generally seen as legal as long as the adult performers are over the age of 18 in the United States.  Some exceptions may apply such as for obscenity.

Letter to the Clerk of the Court

Here is a copy of the letter filed by the attorney for Foshan with the Clerk of the Court (you can find this in the federal online pacer search):

Dear Clerk of the Court:

Petitioner Foshan Ltd. (“Foshan”), through its undersigned counsel of record, hereby respectfully requests that the Clerk of this Court issue a subpoena to Pornhub.com (“PornHub”) to identify alleged infringers of Foshan’s copyrighted material, pursuant to 17 U.S.C. § 512(h).

The proposed DMCA subpoena is attached hereto. Foshan is the owner of numerous copyrighted audiovisual works. In its efforts to protect its works, Foshan has determined that infringing copies of these works, posted at the direction of individual users, appear on PornHub without Foshan’s authorization. Upon such discovery, Foshan sent PornHub’s registered DMCA agent a DMCA notification, which included a representative list of the subject copyrighted works, and the identification and location of the infringing material on PornHub.

With this letter, Foshan seeks to obtain a DMCA subpoena to learn the identify of the individuals behind the infringing content. Foshan has satisfied the requirements for issuance of a subpoena pursuant to 17 U.S.C. § 512(h), namely:

(1) Foshan has submitted a copy of the notification required by Section 512(c)(3)(A) as Exhibit A to the Bradbury Declaration, submitted concurrently herewith;

(2) Foshan has submitted the proposed DMCA Subpoena (attached hereto);

(3) A sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title. See Bradbury Declaration, attached hereto, at ¶ 4. Because Foshan has complied with the statutory requirements, Foshan respectfully requests that the Clerk expeditiously issue and sign the proposed DMCA Subpoena pursuant to 17 U.S.C. § 512(h)(4) and return it to undersigned counsel for service on the subpoena recipient.

17 U.S.C. 512(h) subpoena requirements

Here is what the subpoena section of the above cited law says:

(h) Subpoena To Identify Infringer.

(1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

(2) Contents of request.—The request may be made by filing with the clerk— (A) a copy of a notification described in subsection (c)(3)(A); (B) a proposed subpoena; and (C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification. (6)Rules applicable to subpoena.— Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

If you need help interpreting this law give us a call at the number below.

Case status

The Court has signed the subpoena so next steps are pending.

Contact an illegal download / upload attorney

If you need help with a DMCA or Copyright infringement case give us a call at (877) 276-5084.  We can help with illegal downloading of software, music, video, film, photos, comics, songs, books, and other digital content.

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