Shueisha Inc. v. DMCA Subpoena to Cloudflare, Inc. — Entry #20: Second Discovery Letter Briefre: Protective Order [pursuant to D.E

Case 4:25-mc-80147-YGR           Document 20        Filed 12/08/25     Page 1 of 6


December 8, 2025

Hon. Thomas S. Hixson, United States Magistrate Judge
450 Golden Gate Avenue, Courtroom E – 15th Floor
San Francisco, CA 94102

VIA ECF

RE: In Re. 17 U.S.C. §512(h) Subpoena to Cloudflare, Inc. (Shueisha Inc.), Case No. 4:25-
mc-80147-YGR (TSH) Joint Discovery Letter re: Protective Order

Dear Judge Hixson:

        The parties in this action jointly submit the 5-page letter brief that follows this cover
sheet/signature page, along with each party’s accompanying proposed protective order pursuant
to the Court’s order in D.E. 19.

Sincerely,
 KRONENBERGER ROSENFELD, LLP                      GAMMA LAW, P.C.

 s/ Leah Rosa Vulić                               s/ Marco Martemucci
 Leah Rosa Vulić (SBN 343520)                     Marco Martemucci (SBN 255054)
 548 Market St. #85399                            One Sansome Street, Suite 1400
 San Francisco, CA 94104                          San Francisco, California 94104
 Telephone: (415) 955-1155                        Tel.: 415.901.0510
 Facsimile: (415) 955-1158                        Fax: 415.901.0512
 leah@kr.law                                      MMartemucci@gammalaw.com
 Attorneys for Non-Party John Doe                 Attorneys for Shueisha Inc.


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Hon. Thomas S. Hixson
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John Doe’s Position:
         Doe’s position on the protective order is set forth fully in the Joint Discovery Letter Brief
filed at D.E. 16. Doe appreciates the Court’s guidance in D.E. 19. Doe submits a revised protective
order comporting with the Court’s guidance. Additionally, Doe responds to Shueisha’s position.
I. There is clear good cause for a protective order.
         Shueisha again argues there is no good cause for a protective order. But this Court already
recognized that Shueisha itself has shown the good cause—it intends to use Doe’s identity for
purposes unrelated to protecting its copyrights in the U.S. [See D.E. 19, 2:11-14; see also D.E. 6-
1, 5:2-12; 6-2 Exs. E, F.] In a pre-suit identification proceeding under §512(h), Doe reasonably
expects that any compelled disclosure of his identity will be used only within the U.S. copyright
framework that the statute describes. The risk that Doe’s identity will instead be used in foreign
proceedings, or shared with other third parties, creates a concrete and irreparable harm that Rule
26(c) is designed to address. A protective order is necessary to confine the use of this information
to the specific, narrow purpose for which Congress authorized disclosure.
II. The statutory oath, relevant authority, and this Court’s prior ruling foreclose foreign use.
         Shueisha’s first core contention is that issuance of a DMCA subpoena and the subsequent
use of the subpoenaed information are legally separate. In its view, as long as it acted in “good faith”
at the time of issuance, later use of Doe’s identity, including abroad, is unconstrained by §512(h).
         That is not what the statute says. Section 512(h)(2)(C) requires a sworn declaration that the
information sought “will only be used for the purpose of protecting rights under this title,” and
§512(h)(3)(A) makes that sworn statement a condition precedent to issuance. This use limitation
is not a one-time box to be checked and then disregarded; it is part of the statutory bargain for
obtaining highly sensitive information through a streamlined, ex parte procedure. It functions as
an ongoing constraint on how the information may be used.
         This Court has already held—twice—that Doe’s identity may not be used for any purpose
unrelated to the purpose of the subpoena, which is to pursue U.S.-based copyright claims, and that
foreign litigation is outside of that scope. D.E. 14, 19. That conclusion is correct. 17 U.S.C.
§512(h)(2)(C); see Signature Mgmt. Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145, 1159
(N.D. Cal. 2013). §512(h) is a narrow, pre-suit identification device designed to enable U.S.
copyright enforcement, not a general investigative writ for use in any jurisdiction.
         Shueisha suggests that because it did not yet know Doe’s physical location at the time of
the subpoena, it should now be free to use the information in foreign proceedings if Doe turns out
to be outside the United States. But uncertainty about a user’s location is simply the risk of
choosing the streamlined §512(h) process. It is not a license to retroactively expand a Title 17-only
subpoena into a general-purpose identification tool for foreign litigation. A rightsholder that needs
discovery in aid of foreign proceedings has a separate mechanism, 28 U.S.C. §1782, for that
purpose. Doe’s revised proposed protective order §§1.1-1.2 reflect this settled principle.
III. 28 U.S.C. §1782 provides the proper vehicle for foreign proceedings.
         Shueisha argues that if §512(h) information cannot later be used in foreign proceedings,
the Court will force it to “waste resources” by seeking the same information again via §1782. That
argument misdescribes both statutes, and cannot be used to violate §512(h).
         When a party wants U.S. discovery for use in foreign proceedings, Congress has provided
a specific tool: 28 U.S.C. §1782. Courts applying §1782 consider the factors of Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 262 (2004), including comity and fairness, before
authorizing such discovery. By contrast, §512(h) was drafted to allow a copyright owner to identify
an alleged infringer quickly and ex parte for the narrow purpose of pursuing U.S. copyright


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remedies. Treating §512(h) as a general global unmasking device would collapse the distinct roles
of these statutes and effectively bypass the safeguards that §1782 and Intel provide.
         When Shueisha has sought discovery in aid of foreign proceedings, it has filed applications
under 28 U.S.C. §1782, seeking leave to serve subpoenas on U.S.-based entities for use in foreign
litigation. See, e.g., Shueisha Inc. v. Cloudflare, Inc., No. 23-MC-80162-SK, 2023 WL 5993052
(N.D. Cal. Aug. 8, 2023). But notably, even in these cases, Shueisha has exceeded the permitted
use of prior §512(h) subpoenas, directly in contradiction of that statute’s stated purposes. See In
re Shueisha Inc., No. 5:24-MC-80263-BLF, 2024 WL 4633645, at *1 (N.D. Cal. Oct. 29, 2024);
In re Shueisha, Inc., No. 21-MC-80255-VKD, 2021 WL 5279816, at *1 (N.D. Cal. Nov. 12, 2021);
Shueisha Inc. v. Paypal Holdings, Inc., No. 22-MC-80273-JSC, 2023 WL 2277102, at *1 (N.D.
Cal. Feb. 27, 2023) (using DMCA subpoenas for later §1782 petitions to aid in foreign discovery).
In those prior § 1782 matters, Shueisha’s applications were decided ex parte, and no Doe or
anonymous user appeared to oppose them or to raise § 512(h)(2)(C)’s “protecting rights under this
title” limitation. As a result, the courts had no occasion to examine that issue in an adversarial
setting. But because a DMCA subpoena is so easy to obtain—it’s not even reviewed by the court
prior to issuance, it can be used to unmask multiple people at once (Shueisha’s takedown notice
had 25 separate URLs) without substantive evidence, just an attestation—parties seeking to
unmask anonymous Does must strictly follow it.
         What Shueisha asks the Court to do here is effectively to read into §512(h) an implicit
foreign-use exception that Congress did not enact, and that would duplicate §1782 without its
safeguards. The Court should decline to do so.
IV. Doe’s protective order implements safeguards before Shueisha may unilaterally dispose
of the order’s protections.
         Shueisha’s proposed protective order essentially provides for self-evaporation once
Shueisha files a lawsuit (Shueisha proposed order §4). But even after a public lawsuit is filed, the
protective order must continue to bind Shueisha’s use of the subpoena-derived information to
purposes under Title 17. If this protection falls away, the order becomes toothless and doesn’t really
protect anything. For example, Shueisha may simply file a U.S. copyright infringement lawsuit to
escape the protections of the order; and then file a lawsuit abroad. This circumvents the Court’s
ruling and statutory authority then §512(h) may only be used to protect rights under Title 17.
         Doe’s proposed protective order provides continuing protections, namely: 1) use of Doe’s
identity may only be in connection with protecting Shueisha’s copyrights under the Copyright Act
(§1.1); and 2) Doe’s identity may never be used for any other purpose, such as foreign litigation
(§§1.2(a), 4). Any other form of protective order would eviscerate Congress’s intent for §512(h).
V. Shueisha’s evolving positions suggest a “roadmap” for use of DMCA subpoenas beyond
Title 17.
         Relatedly, Shueisha’s evolving positions in this case underscore the need for a clear
protective order. In its initial proposed protective order, Shueisha simultaneously asserted that no
protective order was necessary and, at the same time, sought permission to share Doe Identity
Information with unspecified third parties and to use it outside the United States. In its next round
of drafts and briefing, Shueisha again disputed that there is good cause for any protective order.
And after this Court made clear that DMCA subpoena information could not be used in foreign
proceedings, Shueisha then argued that any protective order entered here would effectively “fall
away” once it filed a U.S. copyright infringement lawsuit against Doe. Taken together, these
positions would preserve, in practice, a path to third-party and foreign uses of Doe Identity
Information notwithstanding §512(h)(2)(C), §512(h)(3), and this Court’s guidance.


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        Shueisha’s position effectively provides a practical “roadmap” that others could follow in
future cases. First, take advantage of the very low threshold for a §512(h) DMCA subpoena:
without submitting substantive evidence, based only on a formal attestation and a list of URLs, to
obtain highly sensitive identity information, with no prior judicial review and no participation by
the affected user. Second, file a public lawsuit in the U.S. and, even if that lawsuit is never seriously
pursued or ultimately fails, use the litigation to place that information into the public, even though
it was originally produced subject to §512(h)(2)(C)’s commitment that it “will only be used for the
purpose of protecting rights under” Title 17 and pursuant to a Rule 26(c) protective order. Third,
then contend that since such information has been included in public pleadings in a U.S. copyright
infringement lawsuit, the DMCA’s use limitation and this Court’s protective order no longer
meaningfully govern its subsequent use, including in other proceedings such as foreign litigation.
        The Court should decline to do so. Shueisha’s proposed framework underscores the need
for the Court to strictly follow §512(h)’s Title 17 limitations.
VI. Shueisha’s position is contrary to its attestation and would cause Doe irreparable harm.
        Finally, the practical effect of Shueisha’s takedown notice is that the material has been
removed completely. See In Re DMCA Subpoena to Reddit, Inc., Case No. 3:19-mc-80005-SK,
D.E. 27 at 28:4-23. At this stage, the primary effect of using Doe’s identity in broader ways is to
expose him to additional litigation risk, including foreign proceedings, and to potential retaliation
or collateral consequences that extend far beyond this Court’s supervision.
        For Doe personally, allowing Shueisha to use Doe Identity Information in foreign
proceedings would dramatically increase the irreparable harm the Court has already recognized:
Doe’s identity could be disclosed to foreign courts, regulators, or enforcement agencies over which
this Court has no control. More broadly, if §512(h) subpoenas become a backdoor route to foreign
enforcement, where Doe’s identity, once disclosed, can be repurposed in jurisdictions and for
proceedings far beyond the statute’s design, anonymous speakers and website operators will have
no meaningful way to predict or contest where their identities will ultimately appear. That creates
a serious chilling effect on lawful online expression.
        Doe respectfully requests that the Court enter his proposed protective order.
Shueisha Inc.’s Position
        Shueisha’s declared purpose for obtaining the subpoena in this aligns with the requirements
of the DMCA “to obtain the identity of an alleged infringer and such information will only be used
for the purpose of protecting rights under [title 17 of the United States Code].” 17 U.S.C. §
512(h)(2)(c). There has been no showing of good cause justifying issuance of a protective order,
and no such order is necessary.
        In compliance with the Court’s order, Shueisha submits a proposed protective that would
limit Shueisha’s ability to disclose Doe’s identity prior to filing litigation against Doe for the
infringement identified in the subpoena. However, Shueisha respectfully requests that the Court
not limit its ability to file a copyright infringement action only to U.S. courts. Doe, whose identity
and location is currently unknown, may be located outside of the reach of U.S. Courts. The Court
should not allow Doe to use a protective order to interfere with Shueisha’s right to sue Doe in an
appropriate jurisdiction. The subpoena is valid, lawfully obtained, and the information obtained
will be used in the United States, if possible. Restricting Shueisha’s enforcement options is not
justified by the DMCA or any recognizable harm to Doe and will waste resources.
I.      There Is No Good Cause for a Protective Order
        Protective orders are exceptional measures justified only by concrete harm that the
requesting party has the burden to establish. See In re Violation of Rule 28(D), 635 F.3d 1352, 1358


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(Fed. Cir. 2011). The only harm Doe seeks to avoid are the legal consequences resulting from its
operation of a massive piracy website. 1 Doe has not articulated a single harm it faces other than
copyright enforcement. Doe presents no evidence that Shueisha intends to use Doe’s identity for
anything other than copyright enforcement, which Doe can defend on the merits.
        Avoiding copyright litigation is not a cognizable harm for purposes of a protective order.
Likewise, vague, unspecified privacy interests do not prevent disclosure in DMCA subpoena
matters. Courts have found the interest of copyright holders to seek limited discovery from a third
party to establish a potential infringer’s identity outweighs any privacy interest infringers may
have in protecting their identities. See Strike 3 Holdings, LLC v. Doe, 2019 WL 935390, at *4-*5
(E.D. Cal. Feb. 26, 2019) (denying infringer’s motion to quash in order to allow plaintiff to
determine whether it can obtain the identity of the proper defendant, and noting defendant could
raise any factual innocence claim in a motion to dismiss); Strike 3 Holdings, LLC v. Doe, No.
EDCV182496TJHSPX, 2019 WL 12446430, at *4 (C.D. Cal. Mar. 29, 2019)(finding infringer’s
privacy interest in personally identifiable information to be minimal).
        Considering Shueisha’s attestation of good faith in seeking Doe’s identity for proper
purposes, and Doe’s failure to identify any concrete harm that would result from disclosure, the
Court should find that there is no good cause for a protective order. However, should the Court
find that good cause exists, Shueisha respectfully requests the Court adopt its version of the
protective order submitted herewith for the reasons discussed below.
II.     Shueisha’s Proposed Protective Order Limits Use of Doe’s Identity Information to
        Copyright Enforcement Efforts, in Line with DMCA and Copyright Act Policies
        Shueisha’s proposed order follows the Court’s guidance and identifies specific permitted
uses of Doe’s identity information. See § 2 of Shueisha’s Proposed Protective Order (listing
permitted uses). Such uses—in line with Shueisha’s prior attestation—are limited to copyright
enforcement activities consistent with and permitted under the Copyright Act.
        The Court correctly noted that foreign litigation is outside of the scope of stated purposes
for obtaining a DMCA subpoena. Put another way, DCMA subpoenas are only available to rights
holders intending to pursue their claims within the United States. The validity of the subpoena is
contingent upon the honestly stated purpose for which the subpoena is sought. See 17 U.S.C. §
512(h)(2)(c) (requiring a declaration that the purpose of the subpoena consistent with Title 17).
Here, that requirement is met. Shueisha has every intention of pursuing its copyright claims against
Doe in U.S. courts if possible. The question is: what happens if Doe—whose identity and location
could not be discerned prior to filing the DMCA subpoena request—turns out to be outside of the
reach of U.S. courts?
        There is a difference between a limitation on the permissible purpose for obtaining a
DMCA subpoena and a limitation on how the obtained information is eventually used. The DMCA
does not appear to prohibit a copyright holder from using infringer identity information outside of
the purposes stated in obtaining the subpoena. Likewise, Shueisha could not find any cases in
which a copyright holder was prohibited from filing suit in a foreign jurisdiction based on infringer
information obtained from a DMCA subpoena. In fact, use of DCMA-subpoenaed infringer
identity information for purposes outside of the scope of the DMCA has been expressly permitted
where the original declaration was true and the subpoena was validly obtained. See Visual Supply

1
  Under Fed. R. Evid. 201 the Court may take judicial notice of the publicly reported scale of Doe’s infringement
operation. See, e.g., https://www.cbr.com/mangajikan-manga-piracy-site-shut-down-185-million-monthly-users/
(reporting Doe’s website had 185 million monthly users prior to Shueisha’s enforcement efforts, making it the 17th
most popular page in Japan, outranking Facebook and ChatGPT).


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Co. v. Cloudflare, Inc., No. 24-MC-80159-SK, 2025 WL 2684389, at *4 (N.D. Cal. June 25, 2025)
(Magistrate Judge’s report and recommendation to deny motion to quash DMCA subpoena finding
that use of information from DMCA subpoenas to bring trademark claims did not invalidate
properly issued subpoenas).Thus, even if, as the Court noted, DMCA subpoenas are not available
for a copyright holder intending to pursue copyright claims in a foreign jurisdiction, there is
nothing in the DMCA that prohibits use of subpoenaed information in other jurisdictions. The
statute only addresses when a subpoena should or should not issue; not whether a protective order
is necessary to restrict the use of the produced information. When the information—obtained in
good faith to pursue claims in the United States—reveals the infringer is outside the reach of U.S.
courts, it would go against the copyright enforcement policies of the Copyright Act to read the
statute as requiring protections for infringers located in foreign jurisdictions. 2 The Court should
not read into the DMCA protections for infringers that do not appear in the statute or caselaw.
         Should the Court disagree, it can still adopt Shueisha’s proposed order over Doe’s by
simply striking Section 2(c), permitting use in foreign litigation from Shueisha’s proposed order.
III.     Doe’s Proposed Restrictions Seek to Avoid Copyright Enforcement, not Prevent
         Harm, and Would Waste Court and Party Resources.
         If Shueisha knew when requesting the DMCA Subpoena that Doe was in another
jurisdiction, Shueisha could have pursued a subpoena for discovery in support of foreign litigation
under 28 U.S.C. § 1782. The parties disagree on how to address the current situation given that
Shueisha could not know the location of Doe ex ante. Having pursued a DMCA subpoena in good
faith, Shueisha should not be limited from using Doe’s identifying information elsewhere if
litigation within U.S. courts is unavailable. If Doe is not within the reach of U.S. Courts, Doe’s
proposed restrictions would force Shueisha to start again by pursuing a § 1782 subpoena to
Cloudflare seeking the same information, again at unnecessary delay and expense.
         Doe makes his desire to delay or avoid answering for running a piracy website doubly clear
by asking the Court to restrict Shueisha from using Doe’s identity in foreign copyright litigation,
even after it is disclosed to the public through a U.S. copyright complaint. Doe is asking the Court
to restrict Shueisha from using public information to enforce its copyrights in other jurisdictions,
if Shueisha files suit in the United States. Neither the DMCA nor the Copyright Act were designed
to impede foreign enforcement of copyrights. Doe’s request should be rejected.
         Given Doe’s obvious aversion to disclosure, the Court and the parties will face unnecessary
additional litigation expenses and delays under Doe’s proposed protective order.
Conclusion
         There is no good cause for protecting Doe’s identity from disclosure. Broad restrictions on
Shueisha’s use of validly obtained identity information would contradict both Rule 26(c)’s limited
purpose and the DMCA’s enforcement purposes. Therefore, the Court should not issue a protective
order or limit Shueisha’s ability to pursue its copyright claims against Doe.
         If, however, the Court finds good cause to issue a protective order, the Court should adopt
Shueisha’s proposed protective order. Shueisha’s proposed order provides pre-litigation protection
for Doe’s identity from uses outside of the scope of the stated purposes of a DMCA subpoena,
while allowing Shueisha to protect its rights consistent with the DMCA’s stated purposes of
copyright protection and enforcement.

2
 The Copyright Act is not hostile to foreign rightsholders. Quite the opposite: it includes protections specifically for
copyright holders from treaty party nations. See 17 U.S.C. § 104(b)(2) (providing protection for works published in
foreign nations that are treaty parties). International cooperation on copyright enforcement is essential to the proper
functioning of the Copyright Act.