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A California federal court has ruled that identity information obtained through DMCA subpoenas cannot be used for foreign copyright lawsuits, rejecting manga publisher Shueisha’s attempt to use it outside the United States. The decision comes after the former operator of defunct piracy giant Mangajikan fiercely protested the request for a much broader order.
With an impressive 185 million visitors per month early last year, Mangajikan was one of the largest piracy sites on the Internet.
The site’s popularity did not go unnoticed by manga publisher Shueisha, which took legal action at a California federal court last summer to uncover the operator’s identity.
Shueisha filed a request for a DMCA subpoena, directed at Cloudflare, hoping to expose the operator. This appeared to yield results right away, as mangajikan.com and the related domain alammanga.com were voluntarily taken down soon after.
The DMCA subpoena was granted last October, despite fierce objections from Mangajikan’s former operator. However, Cloudflare could not hand anything over yet, as both sides disagreed on the scope of the associated protective order. This disagreement was finally resolved this week.
U.S. Enforcement Only
At the heart of the dispute was whether Shueisha could use the pirate site operator’s identity for copyright lawsuits in Japan or other foreign jurisdictions. The manga publisher argued it should have that flexibility, as it couldn’t know the operator’s location when requesting the subpoena.
Magistrate Judge Thomas S. Hixson disagreed.
In a discovery order issued this week, the court stated that the DMCA subpoena’s purpose and scope is clearly defined by the sworn declaration Shueisha made to obtain it. This legally required statement says that the subpoena “will only be used for the purpose of protecting rights under this title.”
“‘[T]his title’ means title 17 of the United States Code, so only U.S.-based copyright claims are within the purpose of the subpoena,” Judge Hixson wrote, adding that “foreign litigation is outside of that scope.”
The ruling effectively means Shueisha can identify the operator to its team in Japan, as long as this is to aid U.S. copyright enforcement. However, it cannot use the data obtained through the Cloudflare subpoena to file copyright infringement actions in foreign courts.
U.S. Lawsuit Can’t Be Used as Bypass
The court also rejected Shueisha’s argument that filing a U.S. copyright lawsuit would effectively end the protective order’s restrictions, allowing the publisher to then use the publicly filed information however it wished, including in foreign proceedings.
Judge Hixson characterized this as an impermissible bait-and-switch.
“Filing a U.S.-based copyright claim does not cause the protections of the protective order to evaporate. They remain in place; otherwise, Shueisha’s attestation was false. It is not acceptable for Shueisha to make an attestation that it will use the requested information ‘only’ for one purpose and then later change its mind,” the order states.
Mangajikan’s attorneys previously warned the court that Shueisha’s position would create a “roadmap” for rightsholders to circumvent DMCA limitations. They could simply obtain identity information through a DMCA subpoena, file a token U.S. lawsuit to make the info public, and then use it for foreign lawsuits.
No Privacy Fortress for Pirate Site Operator
While the pirate site operator won on the foreign litigation issue, the court rejected most of the operator’s proposed privacy protections as excessive. Judge Hixson called the operator’s 19-page protective order proposal “excessive,” noting it would have micromanaged Shueisha’s internal operations.
The final protective order clarifies that, while Shueisha can publicly identify the operator by name in U.S. court filings, other personal information, such as email addresses, phone numbers, and financial data, remains protected.
The order allows Shueisha to share the operator’s identity with its employees in Japan, coordinate with U.S. law enforcement, and use the information for settlement negotiations or U.S.-based copyright claims.
What’s Next
With the protective order now in place, Cloudflare must hand over the identity information to Shueisha’s lawyers. The publisher must then decide if it wants to use that information to file a U.S. copyright lawsuit, or pursue alternative enforcement options.
If Shueisha fails to file a U.S. action before the statute of limitations expires, the company must destroy all identity information.
Needless to say, the case continues to be closely watched by other rightsholders and pirate site operators. DMCA subpoenas are a widely used intelligence gathering tool, and the present order confirms they are not without boundaries.
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A copy of Magistrate Judge Hixson’s Discovery Order is available here (pdf). The final protective order as modified by the court is available here (pdf).
