Last month persons unknown began sending DMCA takedown notices to YouTube, claiming that videos uploaded by Destiny content creators infringed Bungie’s copyrights.
YouTube responded by removing the videos, including some that had been uploaded by high-profile creators and others that appeared on Bungie’s own channels.
With the finger of blame pointing at Bungie, the company began an investigation to discover the truth. It transpired that the notices, formatted to give the impression they were sent by a Bungie content protection partner, were actually elaborate fakes sent from a newly-created Google/Gmail account.
According to one of the alleged notice senders, the fakes were designed to draw attention to Bungie’s failure to properly handle bogus notices sent in the past by other people. Clearly annoyed by the protest, Bungie filed a lawsuit claiming that the defendants willfully sent DMCA takedown notices containing material misrepresentations, a breach of copyright law.
Bungie wants Google to hand over the notice senders’ personal details but a new filing in the case reveals that Google is currently refusing to comply.
Google: Request is Improper and Otherwise Objectionable
Bungie previously said it would send a DMCA subpoena to Google to identify the defendants and hold them accountable for their “tortious and illegal conduct” and deter anyone else “stupid enough to volunteer as a Defendant by targeting Bungie’s community for similar attack.”
Making good on its promise, on March 29 Bungie served a DMCA subpoena on Google demanding any and all information it holds on the fraudulent DMCA notice senders. A few days later, a Google response indicated that the company will not be complying with the subpoena.
“Google will not produce documents in response to the Proposed Subpoena because it is improper and because the request is otherwise objectionable,” a letter to Bungie’s counsel reads.
The problem, according to Google, is that DMCA subpoenas enable a rightsholder to obtain information relating to an alleged copyright infringer. In this respect, Bungie’s request fails.
“Section 512(h) of the Copyright Act provides only for the production of information sufficient to identify an alleged infringer of copyright. To be valid, an application for a DMCA subpoena must include a copy of a Section 512(c)(3)(A) notification [copyright infringement notice] alleging that the target of the subpoena is an infringer,” Google’s reply reads.
“The Proposed Subpoena instead seeks information sufficient to identify senders of copyright removal requests that you allege were fraudulent, not infringers. It also seeks a list of email addresses belonging to correspondents of those notice senders. Section 512(h) does not authorize the production of such information.”
More Problems: Defendants Aren’t In The United States
Another issue raised by Google relates to personal jurisdiction. YouTube’s owner says that even a “casual review” of the defendants’ publicly available videos would’ve revealed that they do not reside in the United States. With that in mind, Google says that Bungie’s counsel lacks “a good faith belief” that the US court has personal jurisdiction over the defendants. And there’s more.
Google indicates that the personal information requested by Bungie relates to users of Google’s services within the European Economic Area (EEA) and/or Switzerland. Google Ireland Limited controls EEA data for YouTube and that entity operates under Irish law.
“Google Ireland Limited requires binding legal process issued by an Irish court or under Irish law which must be validly served on Google Ireland,” Google adds.
Google continues by noting that the subpoena fails to provide enough time to notify the affected users and for the users to assert their rights in response. Google allows users “at least 10 days” to object to a data release or inform the company of their intent to file a motion to quash.
Additionally, Google says that the subpoena imposes an undue burden on a disinterested non-party, seeks to obtain information Bungie already has in its possession or could’ve been obtained from public sources, and is unreasonable in several other ways.
“Google objects to the Proposed Subpoena to the extent it seeks information that is not proportionate to the needs of the case, not relevant to any party’s claims or defenses, or not reasonably calculated to lead to the discovery of admissible evidence,” Google adds.
Google Offered to Discuss
In its response to Bungie’s counsel, Google said that if there are any questions its Legal Support Department may be able to help. However, if Bungie intends to seek any judicial relief, Google would like the opportunity to “meet and confer in advance of any such filing.” Bungie says that was not possible.
“Upon receipt [of Google’s response], I immediately responded requesting a meet and confer as directed. As of the filing of this motion, I have received no response to that email,” Bungie’s counsel informs the court.
The next steps will become apparent in the coming days but Google is clear that in this case, a DMCA subpoena is not an appropriate route to obtain personal data.
Related court documents can be found here (pdf).