OPINION & ORDER I.INTRODUCTION Petitioner Charming Beats LLC (“CB”) requests that the Court issue a subpoena (the “Subpoena”) to Audiomack Inc. (“Audiomack”) pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §512(h). (ECF Nos. 2-2-3 (the “Application”)). After filing the Application, CB filed a letter-motion to compel the Southern District of New York Clerk’s Office to issue the Subpoena. (ECF No. 5 (the “Motion to Compel”)). For the reasons discussed below: (i) CB’s Application is GRANTED, and (ii) CB’s Motion to Compel is DENIED AS MOOT. II. BACKGROUND A. The Notices Audiomack is “a free[] music sharing and discovery platform for artists” serving “millions of fans.” (ECF No. 2). About, Audiomack, https://audiomack.com/about (last visited Oct. 26, 2021). On September 9, 2019 at 12:09 p.m., Richard Garbarini, Esq. (“Garbarini”), acting on behalf of CB’s predecessor in interest, Yesh Music, LLC (“Yesh”), submitted a form on Audiomack.com1 — for a fourth time2 — to alert Audiomack that a copyright-infringing audio recording (the “Infringing Content”) existed on its website, and request that Audiomack both remove the Infringing Content and notify the original posters of their violation. (ECF No. 2-1 (the “Fourth Notice”)). Garbarini’s Declaration (the “Declaration”) states that the Fourth Notice was also “formally served [on Audiomack] by certified mail.” (ECF No. 2 5). The Fourth Notice stated, in relevant part: Each of these links [referring to: https://audiomack.com/song/wise13/caramelo] infringe[s] my client’s copyrighted recording Anything You Synthesize. After careful consideration, no fair use, fair dealing, or a similar exception applies to the above. This notice is under Section 512(c) of the [DMCA], and, once again, my client Yesh seeks the removal of the aforementioned infringing material from your servers. I, on behalf of my client, demand Audiomack immediately notify the infringers of this notice and inform them of their duty to remove the infringing material[.]…Rest assured, this is the fourth Take-Down Notice and in the event these posts are not removed immediately, we will file an action against Twitter [sic] in the Federal Court for the Southern District of New York. I am providing this notice in good faith and on the express written authority of Yesh[], with the reasonable belief that the rights of my client are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved. (ECF No. 2-1 at 2-3 (emphasis added)). Minutes later, at 12:52 p.m., David Ponte (“Ponte”), Co-founder and CMO of Audiomack, replied: “This has been removed.” (Id. at 2). Over two years later, on October 7, 2021, when the Infringing Content reappeared on Audiomack’s website, Garbarini again wrote to Ponte: I represent [CB,] the sole owner, by assignment, of the copyrighted recording and composition Anything You Synthesize — U.S. Copyright No. SR 713-287 (the “Copyrighted Track”). On September 19, 2019, Audiomack was served with a take-down notice pursuant to Section 512(c) of the DMCA, concerning the recording titled Caramelo by the artist Ninho (the “Infringing Track”).3 The Infringing Track is composed of my client’s Copyrighted Track and a rap song performed by Ninho over the Copyrighted Track. Audiomack has not removed the Infringing Track which is currently available on the Audiomack App[] and website located at . (ECF No. 2-2 at 2 (emphasis added) (the “Fifth Notice”)). Garbarini asserted that Audiomack was liable to CB under the DMCA for over $60,000 in damages, and invited Ponte to contact Garbarini “if Audiomack is interested in resolving this matter pre-litigation.” (Id. at 2-3). No reply from Audiomack appears in the Application, but according to Garbarini, Audiomack removed the Infringing Content promptly after receiving the Fifth Notice on October 7, 2021. (ECF No. 2 7). B. The Application On October 15, 2021, CB filed the Application, asking the Clerk of the Court to issue a subpoena to Audiomack. (ECF No. 2). In its Application, CB asserted that: (1) Audiomack hosted the Infringing Content on its website; (2) CB issued four take-down requests via Audiomack’s online form; (3) Audiomack removed the Infringing Content but it was later re-uploaded to Audiomack’s platform; (4) on October 7, 2021, CB sent the Fifth Notice to Audiomack; (5) Audiomack again deleted the Infringing Content; and (6) CB seeks to identify the uploader and obtain the date the infringing content was uploaded. (Id.
