RAW FILMS, LTD. v. JOHN DOES 1-15
Filing
12
MEMORANDUM. ( SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/23/12. ) 3/27/12 ENTERED AND COPIES E-MAILED.(gn, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAW FILMS, LTD.
v.
JOHN DOES 1-15
:
:
:
:
:
CIVIL ACTION
NO. 11-7248
MEMORANDUM
McLaughlin, J.
March 23, 2012
The plaintiff filed this suit on November 21, 2011,
alleging that each of fifteen Doe defendants infringed the
copyright in its motion picture by reproducing and distributing
it over the Internet using a peer-to-peer file-sharing protocol
called BitTorrent.
The Doe defendants are identified solely by
internet protocol (“IP”) addresses corresponding to the Internet
connections alleged to have been used to infringe the plaintiff’s
copyright.
The Court granted an earlier motion by the plaintiff
for leave to file subpoenas on the Internet Service Providers
(“ISP”) servicing the IP addresses identified in the complaint to
help determine the identity of the Doe defendants.
No Doe
defendant to date has been identified by the plaintiff or served
with the complaint.
Two of the Doe defendants, made aware of the
subpoenas by their ISPs, have moved to quash those subpoenas and
sever the case as to all other Doe defendants.
Because the
joinder of the fifteen Doe defendants is proper and quashing the
subpoenas issued would be inappropriate at this stage of the
litigation, the Court will deny the defendants’ motions.
I.
Complaint
The plaintiff claims that the Doe defendants, each
identified only by an IP address, willfully copied, reproduced,
redistributed, performed, and displayed its motion picture,
“Bareback Street Gang” (the “Work”) by means of the file-sharing
protocol known as BitTorrent, in violation of federal copyright
law, 17 U.S.C. § 106(1) et seq.
A.
Compl. ¶¶ 44-49.
BitTorrent
According to the plaintiff, the BitTorrent protocol
facilitates file-sharing by permitting multiple users to download
and upload the same file simultaneously.
An initial “seeder”
begins the process by using a BitTorrent client program to break
the file intended for sharing (“original file”) into identically
sized “pieces,” each of which has a unique alphanumeric hash
code, and creating a “torrent,” which records those hash codes
and permits other client programs to identify, download, and
reassemble the pieces into the original file.
Id. ¶¶ 13-21.
When other users, known as “peers,” download the
torrent file, the BitTorrent protocol signals that those peers
are seeking to download the original file, and the seeder begins
to distribute pieces to those users.
Once a peer has downloaded
a piece, it serves as a source of that piece to other peers
possessing the torrent and seeking to download the original file.
When a peer has downloaded all of the pieces, the client program
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continues to distribute the file like the initial seeder.
In
this way, the initial seeder and peers serve to share and
distribute the original file in an activity known as a “swarm.”
Id. ¶¶ 28-31.
B.
Activity of Does 1-15
Each of the Doe defendants is alleged to have
participated in the same “swarm” sharing and distributing the
plaintiff’s Work.
Id. ¶ 32.
The plaintiff used forensic
software to track and identify BitTorrent activity involving a
specific copy of the Work that was identified by its own “Unique
Hash Number.”
The investigation identified fifteen IP addresses,
corresponding to the Doe defendants here, that participated in
the same swarm by transmitting a piece of this version of the
Work using the BitTorrent protocol.
Each IP address connected to
a server established by the plaintiff’s investigator and
transmitted a piece of the same copy of a file constituting the
plaintiff’s Work between July and October 2011.
Id. ¶¶ 35-40,
Ex. A.
By participating in the same swarm, the defendants are
each alleged to have directly infringed the plaintiff’s copyright
in the Work and to have “induced, caused[,] or materially
contributed to the infringing conduct” of the other defendants.
Id. ¶¶ 48, 54.
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II.
Procedural History
After the plaintiff filed suit but before identifying
any Doe defendants, it moved for leave to serve subpoenas on
Cavalier Telephone, Comcast Cable, and Verizon Internet Services,
the ISPs that service the fifteen IP addresses the plaintiff
alleges were used to infringe its copyright.
The subpoenas
commanded each ISP served to provide the plaintiff with the “true
name, address, telephone number, e-mail address and Media Access
Control address of the Defendant to whom the ISP assigned an IP
address” identified in Exhibit A to the motion (and the
complaint).
The Court granted that motion in part but denied the
plaintiff’s request to rule in advance on objections to those
subpoenas.1 (ECF No. 4).
On February 10, 2012, a Motion to Quash or Modify the
Subpoena was filed by one Doe defendant (identifying him or
herself by the e-mail address johndoe07248@yahoo.com), requesting
that the Court sever the remaining defendants from the case under
Federal Rule of Civil Procedure 21.
(ECF No. 5).
The plaintiff
opposed that motion on February 24, 2012, arguing that the
requirements for permissive joinder had been met and that
severance would impair its ability to enforce its rights.
1
The subpoena authorized by the Court directs ISPs that are
“cable operators” as defined by federal statute to notify its
subscribers of the subpoena. Pl.’s Proposed Order ¶ 4 (ECF No.
3) (citing 47 U.S.C. § 551(c)(2)(B)).
-4-
On February 28, 2012, another Doe defendant (identified
by the email address johndoeedpa1234@yahoo.com), apparently using
an IP address serviced by Verizon Internet Services, filed a
motion with the Court. (ECF No. 7).
That motion seeks severance
of the remaining Doe defendants, the quashing of the subpoena
served on his ISP, and/or the issuance of a protective order
staying all discovery in the case until his or her interests can
be heard.
The plaintiff opposed that motion on March 13, 2012.
III. Discussion
The Court finds that the allegations of the complaint
make joinder appropriate at this early stage of litigation
because the plaintiff asserts a right to relief against all Doe
defendants that appears, given the technology involved, to arise
out of the same series of transactions or occurrences and because
common questions of law or fact seem to be raised with respect to
all Doe defendants by virtue of the use of BitTorrent to transmit
the same copy of the plaintiff’s Work.
Further, the Court finds
that (a) the information sought in the subpoenas is relevant to
the plaintiff’s claims; and (b) under the circumstances, the
plaintiff’s right to pursue its claims of infringement by means
of discovering subscriber information outweighs the moving
defendant’s asserted rights to remain anonymous in connection
with the alleged infringing activity.
As a result, the Court
will deny the moving defendants’ motions to quash or modify the
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subpoenas.
A.
Joinder
“Persons . . . may be joined in one action as
defendants if: (A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.”
P. 20(a)(2).
Fed. R. Civ.
Where misjoinder occurs, “[o]n motion or on its
own, the court may at any time, on just terms, add or drop a
party.
The court may also sever any claim against a party.”
Fed. R. Civ. P. 21.
Although the United States Court of Appeals for the
Third Circuit has not directly interpreted Rule 20(a), it has
held that events comprising the same transaction or occurrence
bear a “logical relationship to one another” and feature “the
same factual issues [or] the same factual and legal issues.”
Transamerica Occidental Life Ins. Co. v. Aviation Office of Am.,
Inc., 292 F.3d 384, 390 (3d Cir. 2002) (interpreting the
relationship of compulsory counterclaims under Rule 13, which
must arise out of the same transaction or occurrence).
The general policy of the rules regarding joinder is
“toward entertaining the broadest possible scope of action
consistent with fairness to the parties,” and joinder “is
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strongly encouraged.”
United Mine Workers v. Gibbs, 383 U.S.
715, 724 (1966); see also Hagan v. Rogers, 570 F.3d 146, 152 (3d
Cir. 2009) (quoting Gibbs).
The purpose of Rule 20(a) is “to
promote trial convenience” and prevent a multiplicity of
lawsuits.
However, severance of parties where joinder is not
required is committed to the court’s discretion if it finds that
the objectives of the rule are not fostered, or that joinder
could “result in prejudice, expense or delay.”
7 Charles Alan
Wright, et al., Federal Practice & Procedure § 1652 (3d ed.
2001).
Here, the plaintiff argues that joinder of the Doe
defendants in a single action is appropriate because “the claims
against all defendants are logically related and Plaintiff is
seeking joint and several liability,” and that the defendants, as
members of the same BitTorrent swarm, participated in the same
series of transactions or occurrences.
No defendant has appeared
in this matter, as no defendant has been served with the
complaint.
However, based on the plaintiff’s characterizations
of the nature of the BitTorrent technology and the allegations
against each Doe defendant, the Court cannot accept the moving
Does’ arguments that a finding of misjoinder is appropriate at
this stage.
As a result, the Court will not sever the
proceedings as to each defendant at this stage.
The Court may
review the propriety of joinder later in the proceedings, once
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the defendants are served and appear.
By that time, a variety of
defenses or other arguments as to why joinder is inappropriate,
may be raised by the defendants.
The plaintiff alleges that it retained a forensic
investigator, who determined that each of the fifteen Doe
defendants copied a piece of the same copy of the Work as
identified by a particular cryptographic hash value, and that
each of the defendants’ computers connected to the investigator’s
server and transmitted at least a piece of the Work.
¶¶ 35, 37-39.
Compl.
By using BitTorrent to upload or download the same
file, the Doe defendants are part of the same “swarm.”
This is
so even though each defendant’s activity occurred during
different times over a seventy-four day period.
Three pairs of
Doe defendants are alleged to have participated in the swarm on
the same day, although no act of transmittal is alleged to have
occurred within fourteen hours of another.
Compl. Ex. A.
Based on the plaintiff’s allegations regarding the
nature of BitTorrent, the pieces of the Work copied by each
defendant may have been transmitted by or subsequently sent to
other defendants, albeit indirectly, because “recipient
peers . . . automatically begin delivering the piece they just
received to other peers in the same swarm.”
Id. ¶ 33.
Even if
no Doe defendant directly transmitted a piece of the Work to
another Doe defendant, the Court is satisfied that at this stage
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of the litigation the claims against each Doe defendant appear to
arise out of the same series of transactions or occurrences,
namely, the transmission of pieces of the same copy of the Work
to the same investigative server.
The claims against each defendant are logically related
because they will feature largely duplicative proof regarding the
nature of BitTorrent, the plaintiff’s ownership interest in the
copyright for the Work, and the forensic investigation conducted
by the plaintiff.
These common questions of fact are likely to
arise along with the legal standards for direct and contributory
copyright infringement liability.
The joining of the fifteen
defendants that have these elements in common will, at this
point, prevent a multiplicity of lawsuits.
Thus, the
requirements of Rule 20(a)(2) are met, and its purposes
furthered.
Additionally, at this stage of litigation, joinder will
not result in prejudice to any defendant or result in needless
delay.
Indeed, severance of the action as requested by the two
moving Doe defendants would require the filing of separate
actions and the issuance of new subpoenas on the internet service
providers serving the IP addresses in this case in order to
identify each defendant.
Neither of these steps would “secure
the just, speedy, and inexpensive determination” of the action.
Fed. R. Civ. P. 1.
No defendant will be prejudiced by joinder at
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this stage, as none has been served in the matter or required to
respond to the complaint.
Instead, the defendants may benefit
from joinder by permitting them to obtain the same discovery from
the plaintiff or allowing them to see any defenses raised by
other Doe defendants.
See Call of the Wild Movie, LLC v. Does 1-
1062, 770 F. Supp. 2d 332, 344 (D.D.C. 2011) (citing London-Sire
Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass.
2008)).
The defendants may challenge the appropriateness of
joinder later in the proceedings.
Courts faced with allegations of copyright infringement
brought against multiple unnamed defendants based on the use of
BitTorrent have split on whether joinder is appropriate.
Compare
Hard Drive Prods., Inc. v. Does 1-55, No. 11-2798, 2011 WL
4889094, at *5 (N.D. Ill. Oct. 12, 2011) (joinder appropriate);
Donkeyball Movie, LLC v. Does 1-171, 810 F. Supp. 2d 20, 27-28
(D.D.C. 2011) (same) with Hard Drive Prods. Inc. v. Does 1-30,
No. 11-345, 2011 WL 4915551, at *4 (E.D. Va. Oct. 17, 2011)
(joinder inappropriate); Hard Drive Prods., Inc. v. Does 1-188,
809 F. Supp. 2d 1150, 1156-64 (N.D. Cal. 2011) (same).
Courts that have permitted joinder appear to have taken
the same approach as this Court by finding it appropriate as an
initial matter and permitting any defendant, once named and
served, to challenge the appropriateness of joinder later in the
case.
See, e.g., K-Beech Inc. v. Does 1-57, No. 11-358, 2011 WL
-10-
5597303 (M.D. Fla. Nov. 1, 2011); Call of the Wild, 770 F. Supp.
2d at 344; Donkeyball Movie, 810 F. Supp. 2d at 28.
This is
consistent with the Rules, which grant the district court power
to drop parties and sever claims “at any time, on just terms.”
Fed. R. Civ. P. 21.
Other courts have found severance appropriate where a
plaintiff made similar allegations to those in this case.
See,
e.g., On the Cheap, LLC v. Does 1-5011, No. 10-4472, 2011 WL
4018258, at *2-*3 (N.D. Cal. Sept. 6, 2011).
On the Cheap had
numerous factual characteristics that distinguish it from the
present case.2
In addition to featuring over five thousand Doe
defendants, which created a “logistical nightmare,” many were
located out of the district and several defendants had already
appeared and raised a variety of defenses.
Here, no defendant
has appeared or even been identified pursuant to the subpoenas
2
Similarly, many of the other district court opinions cited
in support of the defendants’ requests for severance are based on
old technology, see LaFace Records, LLC v. Does 1-38, No. 07-298,
2008 WL 544992 (E.D.N.C. Feb. 27, 2008); alleged violations of
multiple copyrighted works rather than a single work, see BMG
Music v. Does 1-203 No. 04-650, 2004 WL 953888, at *1 (E.D. Pa.
Apr. 2, 2004)); or involved defendants that had seemingly been
joined “arbitrarily,” see Twentieth Century Fox Film Corp. v.
Does 1-12, No. 04-4862, 2004 WL 3241669, at *1 (N.D. Cal. Nov.
16, 2004). Indeed, district courts ruling on the propriety of
“swarm joinder” have found the specificity of the factual
allegations brought to weigh heavily on the outcome of the Rule
20(a) analysis. See, e.g., Patrick Collins, Inc. v. Does 1-2590,
No. 11-2766, 2011 WL 4407172, at *5 (N.D. Cal. Sept. 22, 2011)
(collecting cases and finding results “highly dependent on the
information the plaintiff presented”).
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served on the defendants’ ISPs.
One moving defendant suggests that the variety of
defenses that could be raised by the Doe defendants renders
joinder inappropriate because it will not foster judicial economy
or promote the efficient resolution of the claims in this case.
Def. Mot. 5 (ECF No. 5) (citing BMG Music v. Does 1-203, No. 04650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)).
However, no
defenses have been raised to date in this case, and indeed,
consolidating early discovery for the purpose of determining the
scope of claims and defenses will foster judicial economy.
Should that process reveal disparate defenses as to each party,
the Court would consider such a fact relevant on a later review
of joinder’s propriety.
The Rules grant the Court authority to revisit the
issue of misjoinder at a later point in the case, either by
motion or sua sponte.
With this procedural protection in mind,
the Court will deny the motions to sever the defendants without
prejudice to their ability to raise the issue of misjoinder at a
later time.
B.
Motions to Quash
One moving defendant also requests that the subpoenas
served on the ISPs in this case be quashed, challenging the
relevance of the information sought by the subpoena and claiming
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a First Amendment interest in remaining anonymous.
The Court
will deny this request.
The moving Doe objects to the subpoena served on his or
her ISP because (a) it may not directly identify the infringing
party but instead an innocent third party, and thus falls outside
the scope of permissible discovery; and (b) he or she claims a
privacy interest in the records sought.
Def. Mot. 14-17.
A
court must quash a subpoena under certain circumstances,
including when it subjects a person to undue burden.
A court may
quash or modify a subpoena if it requires disclosure of “a trade
secret or other confidential research, development, or commercial
information” or requires a nonparty to “incur substantial
expense.”
It may modify a subpoena if the serving party “shows a
substantial need for the testimony or material that cannot
otherwise be met without undue hardship.”
45(c)(3).
Fed. R. Civ. P.
Neither of the moving Doe’s arguments raises valid
grounds for quashing the subpoena served on Verizon.
Proceeding with discovery to obtain the identity of Doe
defendants so that they may be served is proper and within the
scope of permissible discovery.
The plaintiff moved for leave to
serve discovery prior to a Rule 26(f) conference in order to do
so.
Pl.’s Mot. 4 (ECF No. 3).
Discovery for the purpose of
identifying Doe defendants is permissible.
See, e.g., Blakeslee
v. Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009).
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The
Court found good cause for ordering that discovery, see Fed. R.
Civ. P. 26(b)(1), because the plaintiff showed that a subpoena
seeking the subscriber information associated with the allegedly
infringing IP addresses would be the only way for the plaintiff
to identify the proper defendants in this case and proceed with
its claims against them.3
23, Pl.’s Mot. Ex.
See Declaration of Tobias Fieser ¶ 9,
The information sought is thus highly
relevant to the plaintiff’s claims.
The moving Doe also argues that the subpoena must be
quashed because disclosure of his or her identity is violative of
a First Amendment right to engage in anonymous online
communication.
Def. Mot. 17.
The Constitution protects the
right to engage in anonymous communication, and that protection
extends to the Internet.
See Reno v. ACLU, 521 U.S. 844, 870
3
The Court acknowledges that Verizon’s compliance with the
subpoena may not directly reveal the identity of an infringer.
Indeed, the subscriber information Verizon discloses will only
reveal the account holder’s information, and it may be that a
third party used that subscriber’s IP address to commit the
infringement alleged in this case. See, e.g., BMG Music v. Does
1-203, No. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
(acknowledging this limitation on ISP-level subpoenas).
Moreover, the Rules permit parties to obtain discovery of “the
identity and location of persons who know of any discoverable
matter.” Fed. R. Civ. P. 26(b)(1). One moving Doe argues that
the individual whose identity is revealed by the subpoena may not
be the infringer because of “numerous issues, from open wireless
networks being illegally invaded, IP address spoofing[, and]
human and collection errors.” Mot. 21. These are not grounds on
which to quash a subpoena otherwise demonstrated to be proper.
The moving Doe may raise these and any other nonfrivolous
defenses in the course of litigating the case.
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(1997).
The First Amendment is implicated by civil subpoenas
seeking the identify of anonymous individuals.
ex rel. Patterson, 357 U.S. 449, 462 (1958).
NAACP v. Alabama
However, anonymous
speech is not entitled to absolute protection, particularly if
the speech consists of copyright infringement.
Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56, 569
(1985); see also In re Capital Cities/ABC, Inc., 918 F.2d 140,
143-44 (11th Cir. 1990) (“[T]he first amendment is not a license
to trammel on legally recognized rights in intellectual
property.”) (quoting Dallas Cowboys Cheerleaders, Inc. v.
Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)).
The U.S. Court of Appeals for the Third Circuit has not
articulated a standard for balancing the need for discovery
against the right to anonymous speech.
Courts around the country
have applied standards that vary according to the nature of the
protected speech and the showing required to overcome that
protection.
See In re Anonymous Online Speakers, 661 F.3d 1168,
1174-76 (9th Cir. 2011) (noting that courts have required
showings ranging from a “good faith standard” to one
demonstrating the plaintiff’s ability “to survive a hypothetical
motion for summary judgment”).4
4
The most exacting standard appears to have been applied by
the Delaware Supreme Court in the context of a defamation case.
See Doe v. Cahill, 884 A.2d 451 (Del. 2005). The court required
the plaintiff to “submit sufficient evidence to establish a prima
facie case for each essential element” of the claim of defamation
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The Second Circuit is the only federal appellate court
to have adopted a test balancing the right to obtain relevant
discovery to pursue a claim of copyright infringement against the
constitutional privilege to engage in anonymous speech online.
See Arista Records, LLC v. Doe 3, 604 F.3d 110, 114 (2d Cir.
2010).5
The Second Circuit’s test is derived from a 2004
district court opinion that laid out a five-factor test for
balancing intellectual property rights against First Amendment
anonymity interests.
See Sony Music Entertainment Inc. v. Does
1-40, 326 F. Supp. 2d 556, 564-67 (S.D.N.Y. 2004) (adopting the
test after a review of the considerations that had been applied
by district courts to date).6
before the court would permit discovery of the alleged defamer’s
identity. Id. at 467. The Court finds application of such a
standard inappropriate in the present context because Cahill
involved a different type of claim and, more importantly, a
different kind of speech. The plaintiff in Cahill was a city
councilman whose performance in office had been criticized on an
Internet blog. Thus Cahill presented concerns over chilling
political speech, which is entitled to the highest level of
protection under the First Amendment. See McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 342 (1995) (describing the
lengthy history of courts safeguarding the right to publish
political speech anonymously).
5
As the Ninth Circuit noted, “the paucity of appellate
precedent is not surprising because discovery disputes are not
generally appealable on an interlocutory basis and mandamus
review is very limited.” In re Anonymous Online Speakers, 661
F.3d at 1175.
6
The test has since been applied by district courts sitting
in the D.C., First, Third, Fourth, Sixth, Seventh, Ninth, and
Tenth Circuits. See Art of Living Foundation v. Does, No. 105022, 2011 WL 3501830, at *3 (N.D. Cal. Aug. 10, 2011); First
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In Sony Music, the court, faced with alleged
infringement of musical copyrights, evaluated a Doe defendant’s
motion to quash a subpoena served on the defendant’s ISP that
sought to uncover her identity so that she could be served with
process.
Among other grounds, the Doe defendant argued that the
First Amendment protected her right to engage in online filesharing anonymously.
The court recognized the protection
afforded to the potentially expressive practice of file-sharing
(by choosing a collection files to upload and download).
The
court also acknowledged the limited protection the Constitution
affords to speech constituting copyright infringement and the
need for that protection to give way when a civil subpoena,
issued in connection with claim of copyright infringement, seeks
information necessary to advance that claim.
Id. at 562.
The test set forth by the Sony Music court analyzes the
following five factors to determine whether the need for
disclosure outweighs the right to anonymity where the speech
alleged is copyright infringement: (1) a prima facie claim of
infringement; (2) the specificity of the information sought from
Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 248-49 (N.D. Ill.
2011); Call of the Wild, 770 F. Supp. 2d at 341; Warner Bros.
Records, Inc. v. Doe, No. 08-116, 2008 WL 5111884, at *7
(E.D.N.C. Sept. 26, 2008); Fonovisa, Inc. v. Does 1-9, No. 071515, 2008 WL 919701, at *9 (W.D. Pa. Apr. 3, 2008); Interscope
Records v. Does 1-14, 558 F. Supp. 2d 1176, 1178 (D. Kan. 2008);
London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 163 (D.
Mass. 2008); LaFace Records, LLC v. Does 1-5, No. 07-187, 2007 WL
2867351, at *2 (W.D. Mich. Sept. 27, 2007).
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the ISP; (3) a lack of alternative means of obtaining that
information; (4) a “central need” for the information in order to
bring the claim; and (5) the expectation of privacy held by the
objecting party.
Id. at 564-65.
Finding that the information
sought by the plaintiff’s subpoena was necessary to advance its
claim, the court denied the motion to quash.
Id. at 567.
The Court concludes that such a test strikes the
appropriate balance between the limited protection afforded to
speech that constitutes copyright infringement and the need for
the plaintiff to serve a defendant with process in order to
advance non-frivolous claims of infringement.
As discussed
above, the third and fourth factors of the Sony Music test weigh
against quashing the subpoena because the plaintiff has shown
that obtaining the subscriber information possessed by the ISPs
is the only reasonable means of discovering the identity of the
subscribers whose IP addresses were used to commit the alleged
infringement here.
Additionally, the complaint makes a prima facie claim
of copyright infringement, which requires “(1) ownership of a
valid copyright, and (2) copying of constituent elements of the
work that are original.”
Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., Inc., 499 U.S. 340, 361 (1991).
The plaintiff has alleged
that it owns the copyright in “Bareback Street Gang” and that the
defendants, through use of BitTorrent, connected to the
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plaintiff’s investigative server and copied elements of the Work.
The first Sony Music factor thus weighs against quashing the
subpoena.
The subpoena is specific enough to give rise to a
reasonable likelihood that information facilitating service upon
proper defendants will be disclosed if the ISPs comply.
The
subpoena here seeks the name, address, telephone number, e-mail
address and “Media Access Control” address (which identifies the
specific equipment using the IP address) of the subscriber to
whom the served ISP assigned the specific IP addresses at the
dates and times of the alleged infringement identified in Exhibit
A to the complaint.
Again, although the provision of this
information may not directly identify the proper defendants, it
is sufficiently tailored to lead to the identification of those
individuals.
Thus, the second Sony Music factor weighs against
quashing the subpoena.
Finally, courts analyzing the expectation of privacy
possessed by internet users engaging in online file-sharing have
concluded that such expectation is at most minimal because those
individuals have already voluntarily given up certain information
by engaging in that behavior.
A Doe defendant who has allegedly
used the internet to unlawfully download and disseminate
copyrighted material does not have a significant expectation of
privacy.
Accord In re Verizon Internet Servs., Inc., 257 F.
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Supp. 2d 244, 267 (D.D.C. 2003) (engaging in peer-to-peer filesharing is akin to “essentially opening up the computer to the
world”).
Even if the moving Does retained a reasonable
expectation of privacy in their subscriber information, that
interest is substantially outweighed by the need to disclose it
so that the plaintiff may proceed with bringing what appear to be
non-frivolous claims of copyright infringement that cannot be
advanced by other means.
to quash the subpoena.
Thus, the Court will deny the motions
This denial is without prejudice to the
right of any served ISP or other Doe defendant to raise a timely
objection to a subpoena served pursuant to the Court’s order of
December 28, 2011.
Finally, the second moving Doe defendant asks the Court
to enter a protective order that will stay discovery in this case
“until such time as [his or her] interests . . . can be heard and
considered,” Mot. 25, but the Court does not understand the basis
for this request.
The Rules permit the Court to enter a
protective order “for good cause,” in order to “protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.”
Fed. R. Civ. P. 26(c)(1).
The moving
defendant has not put forth the basis for the entry of such a
protective order.
To the extent that Doe has argued that his or
her interests have not yet been heard as to the appropriateness
of the subpoena, those arguments have been addressed above in the
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discussion of the motion to quash.
Otherwise, a party may not proceed to litigate in
federal court anonymously except in rare circumstances.
Fed. R.
Civ. P. 10(a); see also Doe v. Megless, 654 F.3d 404, 408 (3d
Cir. 2011) (finding that “exceptional cases” may merit permitting
a party to proceed anonymously upon a showing of a reasonable
fear of severe harm).
The second moving Doe has not alleged that
he or she fears “severe harm” resulting from the requirement to
appear if he or she wishes to defend against the claims the
plaintiff has brought.
The Court will not enter a protective
order at this time.
An appropriate order shall issue.
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