A Little Known Tool to Identify an Online Pirate or Copyright Infringer
by Chris WasshuberIf you have dealt with online piracy and copyright infringement for any amount of time, you will know that it is often very difficult to identify the person who is the infringer. By identifying I mean finding out their real name and address to be able to hold them accountable for the damage they caused. One of the reasons for this difficulty is data privacy laws that prevent companies from sharing the account information of infringers.
For example, let us assume you wrote a book and you find that somebody is selling without your permission a digital version of it, an ebook, on Amazon. You will send a DMCA takedown request to Amazon. Amazon will promptly remove the unauthorized listing, but they will not tell you any information about who the infringer is, even though Amazon would have a lot of information on that person. They would have a name, an address, forms of payment, IP addresses used, and so on. But Amazon will not share this information with you citing various data privacy laws.
As the damaged party, we would like to know who the pirate is. We may want to sue him for damages or perhaps name and shame them. By identifying the infringer we can also document repeat offenses to build a stronger case against such criminals. But how do we do that? How can we identify the infringer?
One possibility would be to report the infringement to the FBI via their Internet Crime Complaint Center. They have an online form one can fill out. I have done this multiple times, even for major infringement cases with multimillion-dollar damages, but I have never been able to get the attention of the FBI and get an investigation going. I think the IC3 of the FBI is more of a statistical tool for them to gauge what types of crimes are most prevalent and which forms of crime are growing more or less. I am not saying don't report anything there. All I am saying is do not expect the FBI to help you. Just to be clear, copyright infringement is not only dealt with in civil court, there is also a criminal statute and criminal copyright infringement is a real thing and ought to be investigated by the FBI. Unfortunately, rarely the FBI will do that. If the FBI is of no help, what else can we do?
Most lawyers will tell you that you will have to start a lawsuit so that you can subpoena the information you are seeking. The problem with that is the cost. Copyright is a federal matter and one has to sue in federal court. A typical copyright infringement lawsuit will cost you somewhere around $200,000. Even in the most simple and straightforward cases, with a cheap lawyer, you have to expect tens of thousands of dollars. Unless you can prove damages north of one million dollars this is hardly a wise path to take, even though it is possible to also sue to get your legal fees back. But it is not a guarantee, and you would still have to front the money unless you find a lawyer who will do this pro-bono or on a commission basis. Good luck finding one. The other challenge you will face is that there is no guarantee that you will successfully identify the unknown pirate and collect the awarded damages from them, even if you have the court's subpoena power at your disposal, and even if you prevail in court with your case. As you can see, going into a full-blown lawsuit with this comes with big financial risks, even if you have a good amount of damages you can prove, or if you have registered your work prior to infringement, and can therefore claim statutory damages.
But there is a tool that even few lawyers know about, that avoids all of the downsides that come with a copyright lawsuit and still allows you to get the information you are seeking. This tool is called a DMCA subpoena, also known as 512(h) subpoena because it is section 512(h) in the Digital Millennium Copyright Act (DMCA) that spells out the details of this legal tool.
A DMCA subpoena is the lesser-known sibling of the DMCA takedown request. Despite what lawyers will tell you, just as you can send out your own DMCA takedown requests, you can also request a DMCA subpoena all by yourself without the help of a lawyer. It is a bit more complicated than a DMCA takedown request and it will cost you around $50-$60 but is very doable for the average person. I have done it myself. If you engage a lawyer with this task it will cost you anywhere from ~$1000 to $3000. The basic process is that you have to send three documents to the US district court located closest to the Internet service provider you are trying to subpoena. The court clerk will check these documents and if everything is proper the clerk will authorize the subpoena which you will send to the Internet service provider. With this, you legally compel them to produce the necessary account information they have on the infringer. This information can either directly identify the infringer or be helpful in your investigation. For example, even if the infringer uses a fake name or stolen identity, you may learn the Paypal email address the infringer has used to pay his bills. You can then send an infringement report to Paypal to have this account terminated or use this piece of information for further investigations.
To learn the details of how to DMCA subpoena an Internet service provider get my book either as PDF, EPUB, for Kindle, or printed:
- How to DMCA Subpoena without a Lawyer (pro se) and Save Thousands of Dollars (PDF, EPUB)
- How to DMCA Subpoena without a Lawyer (pro se) and Save Thousands of Dollars (Kindle, printed)
Once you have identified the infringer it is much easier to decide if suing them makes sense or not. This will depend on where the infringer is located and your assessment of if you will be able to collect awarded damages.