We got actual movement in the Subpoena case.
The judge wrote down a list of questions, which the parties are expected to prepare for verbal arguments during the hearing on the 20th.
Written answers will NOT be accepted.
I will copy all questions below:
Question 1:
"This question is directed to Ted Entertainment, Inc. (hereinafter “TEI”): The Digital Millennium Copyright Act (“DMCA”) provides a procedure through which copyright holders may subpoena internet service providers for information identifying an alleged copyright infringer. See 17 U.S.C. § 512(h). Did TEI issue the subpoenas pursuant tot he DMCA? Why or why not?"
Question 2:
"This question is directed to both parties: If the subpoena was not issued pursuant to the DMCA, why did the parties discuss case law applying the DMCA legal standard instead of Federal Rule of Civil Procedure 45?"
Question 3:
"This question is directed to both parties: Did the creation of the ability to use a DMCA subpoena to find an anonymous infringer negate a party’s ability to seek a Rule 45 subpoena for the same information?"
Question 4:
"This question is directed to both parties: The parties appear to be arguing the merits of Denims’ alleged copyright infringement and the Doe Defendants’ alleged contributory copyright infringement. Why does the Court not only have to find that TEI made a prima facie case for copyright infringement and contributory copyright infringement to decide the Doe Defendants’ motion to quash? The parties should be prepared to support their positions with relevant case law."
Question 5:
"This question is directed to both parties: How are the facts of this distinguishable from those in In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020)and Barnes v. YouTube, Inc., No. 25-CV-05901-VKD, 2026 WL 412470 (N.D. Cal.Feb. 13, 2026)?"
Question 6:
"This question is directed to both parties: If the alleged infringer, here the Doe Defendants, allegedly infringed copyrights but also commented without copyright infringement, should the Court then apply the Highfields test as Judge Chhabria did inIn re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868 (N.D. Cal.2022)?"
Question 7:
"Are the facts undisputed that I can make a determination of fair use?"
-----
Now to what I think about the questions.
I do not really care about 1,2,3,5,6. I only care about 4 and 7.
As to 4: As far as I understand it, the judge is asking why she should not apply one of the usual tests to see if a subpoena has merit, which would be to see if the plaintiff has a prima fascie case (in the original copyright case) in the first place. She is asking why her finding this to be true/false should not suffice to make a decision. This is pretty much what Ethan's lawyer has asked for. Judge the merits of our copyright infringement cases, and if you find them to hold water, the subpoena is justified. On these grounds Ethan should win easily in my opinion.
As to 7: The judge is pretty much saying, nobody has disputed that I can make a determination of fair use, right? Any opinions?
If the judge actually rules on fair use here, that would be hilarious. Because that would be part of the record, and if she finds no fair use, the Reddit Jannies would be utterly fucked. (EDIT: Although I'd like to know which media exactly she refers to here. It is a bit unclear, because this is NOT a copyright case, could she, because the question is technically in front of the court to judge the subpoena, decide on the fair use of the copyright infringement by Denims, Frogan and Caceytron? If so, that would be utterly hilarious and raise a ton of question on my end)
PDF attached below.
front