Charter further challenged the subpoenas on the ground that they violated the DMCA by
failing to identify the alleged acts of infringement (the subpoenas provided in each case only an
e-mail address, date, and time of day, without any identification of copyrighted works that were
allegedly infringed), seeking private information beyond the scope of the DMCA, and
improperly combining requests for information about 93 different IP addresses into a single
subpoena.^1501
The district court issued the subpoenas and denied Charter’s motion to quash. On appeal,
the Eighth Circuit reversed.^1502 The court reviewed in detail the logic of the D.C. Circuit’s
opinion in the RIAA v. Verizon case and adopted both its reasoning and holding that Section
512(h) does not allow a copyright owner to request a subpoena for an OSP that acts merely as a
conduit for data transferred between two Internet users.^1503 The Eighth Circuit did, however, in
dicta express certain doubts about the validity of Section 512(h) in general:
For purposes of this appeal, we do not address the constitutional arguments
presented by Charter, but do note this court has some concern with the subpoena
mechanism of § 512(h). We comment without deciding that this provision may
unconstitutionally invade the power of the judiciary by creating a statutory
framework pursuant to which Congress, via statute, compels a clerk of a court to
issue a subpoena, thereby invoking the court’s power. Further, we believe
Charter has at least a colorable argument that a judicial subpoena is a court order
that must be supported by a case or controversy at the time of its issuance. We
emphasize, however, for purposes of this appeal we do not reach these issues and
have decided this case on the more narrow statutory grounds.^1504(4) Fatwallet v. Best BuyIn this case, Fatwallet, Inc. filed a complaint against Best Buy Enterprises, Kohl’s
Department Stores and Target Corp. seeking declaratory relief related to the alleged
unconstitutionality of the subpoena provisions and the notice and takedown provisions of Section
512(c) of the DMCA. The court dismissed the plaintiff’s claims in their entirety on grounds of
standing. Apparently only Best Buy had issued a subpoena to Fatwallet under the DMCA. The
court ruled that Fatwallet did not have standing related to the subpoena because it was
undisputed that Best Buy had never attempted to enforce the subpoena. Even if Best Buy had
sought to enforce the subpoena, the court noted that it was difficult to see the harm that would
befall Fatwallet as opposed to its subscribers, and the subscribers’ interest in maintaining their
anonymity was insufficient to invoke standing to a third party such as an ISP to challenge the
subpoena when the ISP had not suffered an injury of its own. The court distinguished the
Verizon decision on the ground that in that case, Verizon had refused to comply with the
subpoena and there was a motion to compel, and in any event, the court disagreed with the
(^1501) Id.
(^1502) In re Charter Communications, Inc. Subpoena Enforcement Matter, 393 F.3d 771 (8th Cir. 2005).
(^1503) Id. at 776-77.
(^1504) Id. at 777-78.