Fox Subpoenas YouTube

It appears that FOX has served YouTube with a subpoena, demanding the identity of a user who has uploaded full-length episodes of the "Simpsons" and yet-to-be aired episodes of "24." No word yet as to whether YouTube will comply. Though there is no way to justify posting something online before its release date, this really is more of an internal problem for Fox than something YouTube should be confronted with. Who has access to unaired episodes of "24" except Fox employees? If YouTube gives in and unmasks the user in question (ECOtotal is the culprits name), then plenty of other copyright owners will demand the same for increasingly less worthy reasons.

According to reports, the subpoena was

Filed on the basis of the Digital Millennium Copyright Act, the subpoena includes testimony of Fox Entertainment Group vp Jane Sunderland suggesting Fox has been unable to determine the users' identities on its own. The uploaded material could cause Fox "irreparable harm," Sunderland said, but it was not immediately clear if the episodes in question still were posted on the site or had been removed.

Under DMCA 512(h), which covers subpoenas to identify infringers, Fox doesn't even have to go to a judge to get a subpoena:

(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.

One would think that a judge should be the only one making the decision whether an ISP must release a user's personal information, but the DMCA says otherwise. So long as Fox (1) writes a takedown notice, (2) submits its own subpoena for the clerk to approve, and (3) declares the subpoena is needed to protect its rights, then the clerk shall "expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider." This sounds sketchy (a copyright owner writing it's own subpoena!), but RIAA v. Verizon, 359 US App DC 85 [DC Cir 2003] said that 512(h) can be used against entities such as YouTube and other service providers that host content on their servers as described in DMCA 512(c).

Of course, YouTube can and should challenge the subpoena if it feels it's bad business to be revealing the identities of its users. For Fox to prevail in such a challenge, it must claim "irreparable harm" as one element of getting the court to force YouTube to reveal the user. It's worth asking about what the irreparable harm is of a YouTube video that's no longer on YouTube. If YouTube is able to takedown the infringing videos, then what is the irreparable harm to Fox of not knowing the identity of the user? Though there is a presumption of irreparable harm in copyright actions, it can be argued that in cases like these the presumption should fail since the alleged harm has been dealt with.