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In re Subpoena to 43SB.com

Melaleuca, an Idaho company, served a cease and desist letter on the host of the “43rd State Blues” blog, www.43sb.com, complaining about a posting by “Tom Paine” that criticized Frank L. VanderSloot, the CEO of Melaleuca, for his relationship with Senator Larry Craig. That cease and desist letter was posted on the blog under the pseudonym “d2.” Thereafter Melaleuca issued a subpoena under the Digital Millenium Copyright Act, asserting that the letter was copyrighted and seeking to identify both Tom Paine, the target of the C&D; letter, and d2, the poster of the C&D; letter. Melaleuca argued that it had reason to believe that Tom Paine might have been responsible for the posting of the letter.

Arguing on behalf of both anonymous posters, the blogger moved to quash the subpoena, arguing that a cease and desist letter is not copyrightable, and that important fair use and First Amendment interests barred enforcement of the subpoena. At oral argument, however, the blogger limited himself to arguing that the letter was not copyrightable and that the First Amendment ought at least protect Tom Paine against being identified.

The court enforced the subpoena in part and quashed it in part, without reaching either of these arguments. It decided first that because Melaleuca has registered a copyright in the letter, the registration was prima facie evidence of a valid copyright and a prima facie case is sufficient to support enforcement of the subpoena. Second, it held that there was no evidence tying Tom Paine to the posting of the C&D; letter, and the identification of Tom Paine was therefore denied for that reason alone.

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