District Court Issues Landmark Subpoena In Online Piracy Case

LOS ANGELES—Foshan, Inc., the Seychelles-based owner of adult sites Wankz.com and WankzVR.com, has asked for, and last Friday received, the most extensive subpoena ever issued in the United States against MindGeek-owned tube site PornHub. Through the subpoena, which was issued under the authority of the Digital Milennium Copyright Act (DMCA), Forshan is seeking all the information PornHub has, including the names, email addresses, IP addresses, user and posting histories, physical addresses, telephone numbers, and any other identifying or account information regarding the person or persons who uploaded to PornHub more than 1,000 video clips to which Forshan claims copyright ownership. The subpoena follows a DMCA "takedown notice" which Foshan Director Philip Bradbury sent by snail- and e-mail on March 24 to Lawrence G. Walters, the Florida-based First Amendment attorney who has been designated by PornHub as the recipient of such notices. "Foshan Ltd. (“Foshan”) is the exclusive copyright owner of the Wankz.com and WankzVR.com content identified in Exhibit A, attached hereto," Bradbury's letter states. "Unauthorized copies of these works are available on Pornhub.com. Such copies violate Foshan’s exclusive rights as the copyright holder of these works. URL(s) identifying the location of the infringing material are also included in Exhibit A. I have a good faith belief that the use of this material in such a fashion is not authorized by the copyright owner, its agent, or applicable law. I hereby request that you remove or disable access to this material as it appears on your service in as expedient a fashion as possible." Having failed to receive a response from Walters within one week of the date of the takedown notice, Foshan's Los Angeles counsel, Erica J. Van Loon, applied to the federal court in the Central District of California for the subpoena covering all of the PornHub uploads to which Foshan claims ownership. While it is unclear what Foshan will do with the uploader information once it receives it, the website TorrentFreak speculates that the company is "considering legal action against one or more persons, if the evidence is sufficient." It may also try to connect the PornHub uploaders to uploads of other copyrighted materials on other sites to see if a pattern emerges, as the same clips were uploaded multiple times by different users. Titles of some of the infringing clips include "Happy Ending" (four uploads), "NYPD Blew" (seven uploads), "Titty Sundaes" (six uploads) and "Russian Roulette" (two uploads)—and those are just ones on the first two pages of the 88-page "Exhibit A" to the subpoena, which lists about 18-20 uploads per page. As one of the largest adult tube sites, PornHub has already been the recipient of numerous takedown notices over the years, and has developed a policy of allowing copyright claimants to summarily remove their pirated content from the PornHub site. "We take claims of copyright infringement seriously," TorrentFreak's Ernesto reports the company as stating. "Responses may include removing, blocking or disabling access to material claimed to be the subject of infringing activity, terminating the user’s access to www.pornhub.com, or all of the foregoing." "As far as we’re aware, this is the first time that a rightsholder has used a DMCA subpoena to obtain information about Pornhub uploaders," Ernesto states. "And since it's a relatively cheap and easy way to expose infringers, this might not be the last." PornHub has until May 1 to either comply with the subpoena or to challenge it in court.