United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART eBAY, INC.'s MOTION TO QUASH [ECF No. 3]
MITCHELL D. DEMBIN, Magistrate Judge.
On March 27, 2015, Petitioner Barry Rosen ("Rosen") requested the Clerk of this Court to issue a subpoena to Respondent eBay, Inc., ("eBay") pursuant to the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512(h), to identify alleged infringers of material allegedly copyrighted by Rosen. (ECF No. 1). The requested subpoena was issued by the Clerk on April 2, 2015, and, apparently, served on eBay. (ECF No. 2). On April 24, 2015, eBay filed the instant Motion to Quash. (ECF No. 3). The matter was referred to this Court by the Honorable Roger T. Benitez, U.S. District Judge, and a briefing schedule issued on May 14, 2015. (ECF No. 6). Rosen timely filed his response in opposition to eBay's Motion to Quash on May 20, 2015. (ECF No. 7) and eBay timely replied on May 27, 2015. (ECF No. 9). The matter is now ripe for resolution. The Court finds that it has sufficient information to decide the case without a hearing. As provided below, eBay's Motion to Quash is GRANTED IN PART AND DENIED IN PART.
eBay's challenge to Rosen's subpoena is twofold: 1) eBay asserts that the subpoena is overbroad; and, 2) that it is invalid because no infringing activity was occurring on eBay's servers at the time the subpoena was served. (ECF No. 3-1). Rosen claims that the subpoena only seeks to obtain identifying information for the alleged subscribers as authorized by the DMCA and is not overbroad. Rosen asserts that if the Court finds the subpoena to be overbroad, the remedy is to modify rather than quash the subpoena. Finally, Rosen states that the DMCA expressly authorizes a subpoena to be issued in these circumstances because there was offending material on eBay's server when the DMCA notification was served.
1. DMCA Procedure
The DMCA provides a statutory scheme for copyright holders to notify internet service providers of the existence of allegedly copyrighted material on their servers. 17 U.S.C. § 512(c)(3). A "safe harbor" is provided to service providers who remove or disable access to allegedly infringing material following receipt of a DMCA notice. 17 U.S.C. § 512(c)(1). Of particular relevance in this case, § 512(h) provides:
(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 ...