The court’s notice of questions indicates that the central conflict involves allegations of copyright infringement and contributory copyright infringement. Ted Entertainment, Inc. is seeking to identify alleged anonymous infringers, referred to as the Doe Defendants.
Judge Sallie Kim is questioning the parties on whether the subpoenas were issued pursuant to the Digital Millennium Copyright Act, specifically 17 U.S.C. § 512(h). The court wants to know why the parties discussed DMCA legal standards instead of Federal Rule of Civil Procedure 45 if the subpoenas were not issued under the DMCA.
The judge also asks whether the ability to use a DMCA subpoena to find an anonymous infringer negates a party’s ability to seek a Rule 45 subpoena for the same information.
A significant portion of the inquiry focuses on the merits of the underlying infringement claims. The court asks why it must find that Ted Entertainment made a prima facie case for copyright infringement and contributory copyright infringement to decide the Doe Defendants’ motion to quash.
The judge seeks to distinguish the facts of this case from In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020) and Barnes v. YouTube, Inc., No. 25-CV-05901-VKD, 2026 WL 412470 (N.D. Cal. Feb. 13, 2026).
The court also asks whether the Highfields test, applied by Judge Chhabria in In re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868 (N.D. Cal. 2022), should apply if the alleged infringer commented without copyright infringement.
Finally, the judge asks if the facts are undisputed enough to allow for a determination of fair use. The hearing is scheduled for 9:30 a.m. via public Zoom webinar, and the court will not accept written answers to these questions.