Decisions Dec. 5, 2007

Subpoena must 'filter' Amazon users

Case: In re Grand Jury Subpoena to
Court: USDC, W. Wisc.
Date: June 26, 2007 (unsealed Nov. 19)

Facts: A federal grand jury subpoenaed for information relating to Robert D'Angelo, a distributor of used books suspected of fraud and tax evasion. The subpoena originally ordered Amazon to provide virtually all of its records on D'Angelo, including the identities of the thousands of customers who had bought books from him, but the government later narrowed the scope to 120 book buyers. Amazon refused to identify any book buyers to the government, citing the their First Amendment right to maintain the privacy of their reading choices.

Holding: U.S. Magistrate Judge Stephen L. Crocker refused to quash the subpoena but concluded that "at this juncture (and perhaps at every juncture), the government is not entitled to unfettered access to the identities of even a small sample of this group of book buyers without each book buyer's permission." His order provided for a "filtering mechanism" whereby Amazon "will send a letter to a subset of the 24,000 purchasers, advising them in general terms of the government's investigation and the customer's potential role in it." The buyer can choose whether to cooperate and those who choose not to "will be left alone."

Attorneys of Record: Robert Dreps of La Follette Godfrey & Kahn in Madison, WI, and Laura Handman of Davis Wright Tremaine in Washington, for Amazon; Assistant U.S. Atty. Daniel Graber for the government.

To read the full opinion, click here

Case: Muchnik v. Thomson Corp.
Court: 2nd Circuit
Date: Nov. 29

Facts: Freelance writers sued publishers in a copyright infringement class action alleging unauthorized electronic reproduction of works licensed only for publication in print media. After more than three years of "often heated" negotiations, the parties reached a settlement that divided the claims into three categories and assigned a damages formula to each type of claim. The trial court granted final class certification and final settlement approval in September 2005.

Holding: The settlement is void because the trial court did not have jurisdiction to certify a class consisting mostly of "Category C" claimants who had unregistered copyrights. The registration requirement of section 411(a) of the Copyright Act "limits a district court's subject matter jurisdiction to claims arising from registered copyrights only," a 2-1 majority of the 2nd Circuit said, rejecting the dissent's argument that since "copyright protection may exist before registration, section 411(a) should be seen as a mere 'enforcement mechanism' that does not affect jurisdiction."

Attorneys of Record: Charles Sims of Proskauer Rose in New York, for the class plaintiffs; Michael Boni of Kohn Swift & Graf of Philadelphia, for the defendants.

To read the full opinion, click here