Verizon decision. The court also ruled that Fatwallet had no standing to assert challenges to the
notice and takedown provisions of Section 512(c), because Fatwallet was suffering no injury as a
result of those provisions. Because the provisions afford only a positive benefit (a safe harbor
from liability), Fatwallet was free to ignore them and no harm would befall it that did not already
exist irrespective of the DMCA.^1505
(5) In re Subpoena to University of North Carolina at
Chapel Hill
The case of In re Subpoena to University of North Carolina at Chapel Hill^1506 followed
the logic of the RIAA v. Verizon and Charter Communications cases and ruled that Section
512(h) does not allow a copyright owner to obtain a subpoena for an OSP that acts merely as a
conduit for data transfer.^1507 In addition, the court rejected the RIAA’s argument, as did the
courts in the Massachusetts Institute of Technology v. RIAA and Boston College v. RIAA cases
discussed in Section II.G.6(h)(1) above, that Section 512(h) allows a party to seek a subpoena in
any court in the nation for service in any other district. The court noted authority that the
subpoena power of a court cannot be more extensive than its jurisdiction, and that Fed. R. Civ.
Pro. 45(b)(2) applies only when a court action or other proceeding is preexisting, which is
typically not the case when the subpoena power of Section 512(h) is invoked. Accordingly, the
Section 512(h) subpoena must be issued by a court in the district in which the subpoena will be
served.^1508
(6) Subpoenas in John Doe ActionsIn the wake of the rulings in the RIAA v. Verizon and Charter Communications
litigations, copyright owners have turned to filing “John Doe” actions in order to seek subpoenas
against OSPs who are mere conduits, and have had success in obtaining subpoenas requiring
disclosure of information about subscribers allegedly engaged in copyright infringement through
the OSP’s service.
For example, in Electra Entertainment Group, Inc. v. Does 1-6, the court allowed the
plaintiffs to take immediate discovery on the University of Pennsylvania to obtain the identity of
each Doe defendant by serving a Rule 45 subpoena seeking the name, address, telephone
number, email address, and Media Access Control (MAC) address for each defendant. The court
required, however, that the Rule 45 subpoena instruct the University of Pennsylvania to
distribute a copy of a notice specified by the court to each Doe defendant within seven days of
service of the subpoena. The notice informed each defendant that a subpoena disclosing the
defendant’s identity had been sought and that his or her name had not yet been disclosed, but
would be within 21 days if he or she did not challenge the subpoena. The notice contained a list
of legal resources who might be able to help the defendant fight the subpoena. The notice further
(^1505) Fatwallet, Inc. v. Best Buy, No. 03 C 50508 (April 12, 2004) (memorandum opinion).
(^1506) 367 F. Supp. 2d 945 (M.D.N.C. 2005).
(^1507) Id. at 952-56.
(^1508) Id. at 956-58.