IP Law Daily, COPYRIGHT—D. Md.: DMCA subpoena must be evaluated under First Amendment standards, (Dec 15, 2025)

By Matthew Hersh, J.D.

But the anonymous owner of an alleged software pirating site had only thin free speech protection.

The owner of a website that allegedly offered gaming software that infringed upon the copyrights as well as the trademarks of another software developer was entitled to argue that the First Amendment protected his right to remain anonymous in the face of a subpoena under the Digital Millennium Copyright Act, the federal court in the Maryland suburbs of Washington, D.C. has held. But the court, while evaluating the free speech claim on its merits, nonetheless found that the copyright holder had easily passed the threshold necessary to unmask the alleged infringer (Doe v. Tamaris (Gibraltar) Ltd., No. 8:25-mc-00319 (D. Md. Dec. 11, 2025)).

The lawsuit arises out of subpoena that an online gaming company, Pragmatic Play, issued to service provider GoDaddy. The subpoena and associated correspondence identified 100 website domains that were allegedly using “unauthorized copies” of the company’s software along with counterfeit trademark belonging to the company. The subpoena demanded that GoDaddy provide identifying information about the owners of the websites.

GoDaddy notified its users prior to disclosing the information, and one of them—identified only as “John Doe” in court papers—moved to quash the subpoena. This opinion followed.

DMCA requirement of individualized showing. The court denied the motion to quash. In so doing, the court first rejected the anonymous movant’s claim that the subpoena lacked adequate specificity under the Digital Millennium Copyright Act, or DMCA. The subpoena and related correspondence identified the copyrighted work claimed to have been infringed and the websites alleged to have engaged in the infringement, the movant argued, but failed to provide evidence supporting its claim of infringement. That would not be fatal to the subpoena, the court found. Under the DMCA, the court found, the requesting party need only identify the work claimed to have been infringed, identify the material that is claimed to be infringing or to be the subject of infringing activity, and seek information “reasonably sufficient” to permit the service provider to locate the material. “Neither supporting evidence nor an individualized showing of infringement is required to satisfy the notification requirement and obtain a DMCA subpoena,” the court found.

First Amendment right to anonymity. The court then decline to quash the subpoena on First Amendment grounds, but not before working its way through several different layers of analysis—in several cases treading on ground where the courts were divided.

The court began by finding that the First Amendment applied to the analysis of whether the anonymous website operator should be unmasked. Authority on the issue was divided, the court found, with one court in the Northern District of California finding that an inquiry under the fair use doctrine was sufficient, but another in the same district holding the opposite, and yet another collecting cases documenting the majority view that the First Amendment applied. The majority would be followed here, the court found.

But while free speech principles applied to the case, the court found, they would not help the movant here. The movant was not using anonymity in order to make a political point or to engage in any expression at the core of free speech principles, the court noted, but was rather using the website only to market a product. As such, this “commercial speech” was entitled to only a relatively thin level of protection—and the subpoena would as a result be subject only to a “less rigorous” test measuring (1) the concreteness of the copyright owner’s showing of a prima facie case of copyright infringement; (2) the specificity of its request; (3) the absence of alternative means to obtain the identifying information sought; (4) the need for the information to advance the infringement claims; and (5) the movant’s expectation of privacy. The subpoena adequately passed muster under this doctrine.

Importantly, the court found, the First Amendment did not require, any more than the DMCA did, that the copyright owner provide evidence supporting its allegations at this stage. To be sure, the court noted, one of the California precedents had required such evidence—but in that case, the copyright owner was seeking to uncover the names of specific individual account holders relating to a video gaming service. Here, by contrast, the court noted, the subpoena sought to identify “only domains engaged in copyright infringement, the operators of which would be proper defendants.” Although the lack of supporting evidence “may somewhat weaken the … prima facie case,” the court noted, the owner had “nevertheless satisfied the elements of a prima facie case of infringement.” The first factor thus favored disclosure.

With this factor tilting toward the copyright owner, the court found, the others fell readily in line. The subpoena requested identifying information, the court noted, that would be “sufficiently specific to establish a reasonable likelihood that the discovery request would lead to identifying information that would make possible service upon particular defendants who could be sued in federal court.” Nor did the anonymous movant provide any alternative means through which the copyright owner could attempt to obtain his identifying information. Finally, the movant’s limited expectation of privacy in the anonymous use of the gaming software—that is, the fact that the speech was commercial and thus entitled to only thin free speech protected—also favored disclosure. The subpoena would not be quashed.

The Case is No. 8:25-mc-00319.

Judge: Sullivan, T.

Attorneys: Yuliya Veremiyenko-Campos (YVC Legal PLLC) for John Doe. David Edison Weslow (Wiley Rein LLP) for Tamaris [Gibraltar] Ltd.

Companies: Tamaris (Gibraltar) Ltd.

Cases: Copyright TechnologyInternet MarylandNews GCNNews