Well Then: Activision Issues DMCA Subpoena To Have Reddit Unmask Whoever Posted That CoD Image Leak

from the the-nuclear-option dept

Well, okay then. We had just been discussing Activision's silly attempt to DMCA to death a leaked image purporting to be the cover art or marketing material for a new Call of Duty game. The whole thing was idiotic in that once word got around that Activision was trying to bury the leak, it immediately caused everyone to think the image was for a real game, rather than some faked pretend leak, which is a thing that sometimes happens. From there, reporting and reproduction of the image in question went mildly viral. In other words, Activision Streisanded the leak it was attempting to bury. Pretty dumb.

But it turns out that Activision isn't screwing around. There were some in our comments who posited that perhaps this was some marketing attempt to create virality of the image. That certainly doesn't appear to be the case, as Activision has issued a subpoena to have Reddit unmask the user who posted the image.

In a filing on February 14, 2020 at a California district court, attorneys acting for Activision requested a DMCA subpoena against Reddit.

“Petitioner, Activision Publishing, Inc. through its undersigned counsel of record, hereby requests that the Clerk of this Court issue a subpoena to Reddit, Inc. to identify alleged infringers at issue, pursuant to the Digital Millennium Copyright Act (‘DMCA’), 17 U.S.C. § 512(h),” the request reads.

“The DMCA Subpoena is directed to Reddit, Inc. Reddit is the service provider to which the subject of the subpoena – Reddit user ‘Assyrian241O’ – posted infringing Activision content.”

At first, it's hard to see how this makes any sense. Yes, it surely must be annoying to a content creator to have any plans for future content to be upended by a leak. On the other hand, first DMCAing that leak in a failed attempt to bury it, and then going to the lengths of unmasking a Reddit poster is surely the nuclear option when it comes to how to handle a leak of game art.

Except, it seems, this might not be about the Reddit post itself so much as where the leak originally came from.

Contrary to the initial claim, that the user “found this image online”, he or she later confessed to it being sent to them by an “inside source”. That raises the question of who Activision is more interested in – the Reddit user or the person who sent them the image, possibly from inside Activision or a related company.

In other words, this is all looking like an attempt to unmask the leaker of the image, not the Reddit user. Still, these are extreme lengths to go to combat a leak that would have barely been noticed had Activision not gone into legal rage mode.

Instead, the company could have chosen to try to use this all as a marketing opportunity, as comments on the previous post thought they had.

Filed Under: call of duty, dmca, dmca subpoena, leaks, subpoena
Companies: activision, reddit

And Then... Court Rejects Rightscorp's Bogus DMCA Subpoena Argument

from the getting-there... dept

So, just yesterday we had this story about Rightscorp successfully getting one part of a class action lawsuit against it dropped. Specifically, the court found that Rightscorp couldn't be sued for abuse of process for trying to use DMCA subpoenas (512(h) subpoenas) to get information on the people it was intended to shakedown for money. As we've noted, such subpoenas have been rejected when the RIAA tried to use them to get info on Verizon subscribers, but here the court held that merely using them was not "abuse of process." However, it still didn't argue that using them was legitimate. So, it's good to see that, in another Rightscorp case, a court had rejected the use of DMCA subpoenas. In that case, the ISP they were sent to, Cbeyond, refused to hand over the info, and the court sided with Cbeyond (who has since been acquired by Birch Communications). As in the RIAA/Verizon case, the court noted that 512(h) subpoenas are for stored content, not for transit providers like ISPs. The court cites that case, and then agrees with its findings (and others that have relied on the RIAA case), even if it's in a different circuit.

The Court finds the opinions of the Courts of Appeals for the District of Columbia Circuit in RIAA and the Eighth Circuit majority in Charter persuasive and well-reasoned. The plain language of Section 512(h) requires, as a prerequisite to issuances of a subpoena, that a copyright owner must file a notice that complies with Section 512(c)(3)(A), including that identifies the allegedly infringing material to be removed or access to which must be disabled. CBeyond does not store or host on its servers the allegedly infringing material, and thus there is no allegedly infringing material to be removed or access to which must be disabled. Because Rightscorp therefore cannot satisfy the notice requirements of Section 512(c)(3)(A), a subpoena cannot be issued under Section 512(h).

The court, however, does not agree to Cbeyond/Birch's request for sanctions, noting that since this particular issue hadn't yet been litigated in this circuit (the 11th), it wasn't "frivolous." That's fair enough, though, once again, it seems like Righscorp should know darn well about the RIAA v. Verizon ruling and others like it by now. And, yes, that's not technically binding in other circuits, but the reasoning is completely sound.

So, while Rightscorp may have been briefly celebrating in getting the "abuse of process" claim tossed out, it's still a pretty fruitless endeavor as now it is learning first hand that DMCA subpoenas cannot be used the way that Rightscorp wants to use them.

Filed Under: 11th circuit, 512h, copyright, copyright trolling, dmca, dmca subpoena
Companies: birch communications, cbeyond, rightscorp