`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`LAFAYETTE DIVISION
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`THIRD DEGREE FILMS, INC., a
`California Corporation,
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`Plaintiff
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`v.
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`DOES 1-2010; DOE 26,
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`Defendants
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` ) CIVIL NO. 4:11 MC 2
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`OPINION AND ORDER
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`This matter is before the court on the Motion to Quash
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`Subpoena [DE 1] filed by the defendant, Doe 26, on July 7, 2011;
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`the Motion to Quash Subpoena Served on Purdue University and
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`Memorandum of Authorities [DE 4] filed by Doe 26 on July 8, 2011;
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`the Request for Oral Hearing [DE 5] filed by Doe 26 on July 8,
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`2011; and the Amended Motion to Quash Subpoena Served on Purdue
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`University and Memorandum of Authorities [DE 6] filed by Doe 26
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`on July 12, 2011. In light of the amended motion, DE 1 & 4 are
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`DENIED AS MOOT. The court finds that the information before it
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`is sufficient to render a ruling and DENIES the Request for Oral
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`Hearing [DE 5]. For the reasons set forth below, the Amended
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`Motion to Quash Subpoena Served on Purdue University and Memoran-
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`dum of Authorities [DE 6] is DENIED.
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`
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 2 of 15
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`Background
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`The plaintiff, Third Degree Films, Inc., filed a complaint
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`in the Northern District of California against 2,010 unnamed Doe
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`defendants, alleging that the defendants obtained and distributed
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`an adult video, "Illegal Ass 2", without its consent in violation
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`of its copyright. Third Degree identified the defendants by
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`their internet protocol (IP) addresses. Third Degree filed an
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`application for early discovery so it could serve subpoenas on
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`internet service providers (ISPs) to determine the internet
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`subscriber names, addresses, and e-mail addresses associated with
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`the IP addresses listed in its complaint. Magistrate Judge
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`Howard Lloyd of the Northern District of California entered an
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`order permitting service of the subpoenas on the ISPs.
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`Third Degree served a subpoena on Purdue University, seeking
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`to compel disclosure of the name, address, telephone number, and
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`e-mail address of Doe 26, a 19 year old student enrolled at
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`Purdue University. On the date of the alleged copyright viola-
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`tion, he resided in a college dormitory at Purdue. Doe 26's
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`roommate and other students used his router and Wi-Fi connection
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`for internet access.
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`Doe 26 opened this miscellaneous action for the purpose of
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`quashing the subpoena. Doe 26 argues that he has standing to
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`quash the subpoena because it seeks disclosure of personal iden-
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`2
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 3 of 15
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`tification information over which he has a personal and propri-
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`etary interest, the information sought is privileged, production
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`of the information would cause him an undue burden, and the
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`information is not relevant to Third Degree’s case. Doe 26
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`further states that there is a high risk that someone else down-
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`loaded the video because others accessed Doe 26's router and Wi-
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`Fi connection and could have used his IP address.
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`To date, none of the defendants have been identified, served
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`with process, or answered in the case pending in the Northern
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`District of California.
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`Discussion
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`Federal Rule of Civil Procedure 45(c)(3)(A)(iii)-(iv)
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`provides that "[o]n timely motion, the court by which a subpoena
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`was issued must quash or modify the subpoena if it . . . requires
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`disclosure of privileged or other protected material and no
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`exception or waiver applies; or . . . subjects a person to undue
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`burden." Further, "the party seeking to quash a subpoena under
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`Rule 45(c)(3)(A) has the burden of demonstrating that the infor-
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`mation sought is privileged or subjects a person to an undue
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`burden." Hodgdon v. Northwestern University, 245 F.R.D. 337, 341
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`(N.D. Ill. 2007). However, implicit in the rule is the require-
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`ment that a subpoena seek relevant information. See Stock v.
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`Integrated Health Plan, Inc., 241 F.R.D. 618, 621-22 (S.D. Ill.
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`3
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 4 of 15
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`2007); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y.
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`1998)("The reach of a subpoena issued pursuant to Fed.R.Civ.P. 45
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`is subject to the general relevancy standard applicable to dis-
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`covery under Fed.R.Civ.P. 26(b)(1)."). Relevancy under this rule
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`is construed broadly to encompass "any matter that bears on, or
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`that reasonably could lead to other matter[s] that could bear on,
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`any issue that is or may be in the case." Chavez v. Daimler-
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`Chrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting
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`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct.
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`2380, 2389, 57 L.Ed.2d 253 (1978)). Even when information is not
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`directly related to the claims or defenses identified in the
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`pleadings, the information still may be relevant to the broader
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`subject matter at hand and meet the rule's good cause standard.
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`Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D.
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`496, 502 (S.D. Ind. 2003).
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`The first hurdle Doe 26 must overcome is to show that he has
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`standing to move to quash the subpoena because the subpoena was
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`served on Purdue, the ISP, not Doe 26. Doe 26 refers to Rule
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`45(c)(3)(B) as his basis for standing. Rule 45(c)(3)(B) states
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`that a person subjected to or affected by a subpoena may move to
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`quash the subpoena. However, Rule 45(c)(3)(B)(i)-(iii) goes on
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`to state specific instances where a person affected by a subpoena
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`may make that request. Such circumstances involve disclosure of
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`4
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 5 of 15
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`trade secrets or commercial information, disclosure of an
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`unretained expert’s opinion, and where a person, who is not a
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`party or a party’s officer, will incur significant expense to
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`travel more than 100 miles. None of these conditions are appli-
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`cable.
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`The arguments Doe 26 raises in support of quashing the sub-
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`poena, including undue burden, privilege, and relevancy, more
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`appropriately fall under Rule 45(c)(3)(A). Subsection (A) does
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`not state that a person affected by a subpoena may move to quash
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`it.
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`A Doe defendant lacks standing to move to quash a subpoena
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`on the ground of undue burden when the subpoena is directed to
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`the ISP rather than to him. First Time Videos, LLC v. Does 1-
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`500, ___ F.Supp.2d ___, 2011 WL 3498227, *3 (N.D. Ill. August 9,
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`2011); Voltage Pictures, LLC v. Does 1-5000, ___ F.Supp.2d ___,
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`2011 WL 1807438, *3 (D.C. Cir. May 12, 2011). This is because
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`the subpoena demands action on behalf of the ISP, and the Doe
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`defendant is not required to produce any information, nor would
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`the Doe defendant face any repercussions for failing to comply.
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`First Time Videos, 2011 WL 3498227 at *7. It would defy logic to
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`believe that the Doe defendant is unduly burdened when he is not
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`required to take any action or produce any information. For this
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`reason, Doe 26 may not move to quash the subpoena served on
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`5
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 6 of 15
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`Purdue on grounds of undue burden because the subpoena was
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`directed to the ISP and requires no action on his behalf.
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`Doe 26 also argues that the subpoena should be quashed
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`because Doe 26 has a privacy interest in the information. Doe 26
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`has standing to assert his privacy interest in the requested
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`information. See Worldwide Film Entertainment, LLC v. Does 1-
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`749, 2010 WL 1994891, *2, n.2 (D.C. Cir. 2010) (citing Covad
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`Communications Co. v. Revonet, Inc., 2009 WL 3739278, *3 (D.S.D.
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`Nov. 4, 2009) ("[o]rdinarily a party does not have standing to
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`object to a subpoena served on a non-party, . . . a party does
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`have standing to object to a subpoena served upon a non-party
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`which requires the production of privileged information.")
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`(citation omitted)). However, Doe 26 has not demonstrated why
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`the requested information is privileged and not subject to
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`discovery.
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`Does 26 relies exclusively on VPR Internationale v. Does 1-
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`1017, Cause No. 2:11-cv-2068 (C.D. Ill. Apr. 29, 2011), to show
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`that his identification information should not be subject to
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`discovery. In VPR, the court denied a motion for expedited
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`discovery requested for the purpose of serving subpoenas on ISPs
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`to identify the internet subscribers associated with the IP
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`addresses accused of violating the plaintiff’s copyright. The
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`court explained that the risk that the copyright infringer might
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`6
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 7 of 15
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`be someone other than the subscriber, such as a neighbor or
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`visitor, outweighed VDR’s need for discovery.
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`However, the question currently before the court is not
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`whether expedited discovery is warranted, as it was in VDR. The
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`Northern District of California previously made the determination
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`to allow expedited discovery and weighed this risk. The question
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`this court must assess is whether the information sought by the
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`subpoena is privileged or protected matter. See Rule
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`45(c)(3)(A)(iii) (listing the grounds on which a subpoena may be
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`quashed). Courts have addressed this issue in a variety of
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`manners. Sony Music Entertainment, Inc. v. Does 1-40, 326
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`F.Supp.2d 556, 563-64 (S.D.N.Y. 2004) (citing In re Verizon
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`Internet Services, 257 F.Supp.2d 244, 267-68, 275 (D.D.C. 2003)
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`(denying motion to quash subpoena because the subpoena provided
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`adequate safeguards to protect the internet users’ First Amend-
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`ment rights); Recording Indus. Ass'n of America, Inc. v. Verizon
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`Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003) (denying
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`an ISP's motion to quash a subpoena seeking subscriber informa-
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`tion for users who had allegedly engaged in copyright infringe-
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`ment); In re Subpoena Duces Tecum to America Online, Inc., No.
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`40570, 2000 WL 1210372, *1 (Va. Cir. Jan. 31, 2000) (denying
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`motion to quash subpoena seeking identity of Doe defendants who
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`made defamatory statements and disclosed confidential information
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`7
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 8 of 15
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`online); Doe v. 2TheMart.Com, 140 F.Supp.2d 1088, 1090, 1097-98
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`(W.D. Wash. 2001) (granting motion to quash subpoena seeking
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`identities of anonymous nonparty ISP subscribers in shareholder
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`derivative suit); Anderson v. Hale, No. 00 Civ. 2021, 2001 WL
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`503045, *9 (N.D. Ill. May 10, 2001) (granting motion to quash
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`subpoena seeking identifying information from ISP about subscrib-
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`ers affiliated with organization); Dendrite International, Inc.
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`v. Doe, 775 A.2d 756, 760, 772 (N.J. 2001) (denying motion for
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`expedited discovery to obtain identity of ISP subscriber due to
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`failure to establish prima facie defamation claim)).
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`Doe 26's motion does not make it clear on what grounds he
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`asserts the information is privileged, although he repeatedly
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`mentions that he has a privacy interest in the information and
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`that the risk of harm to his reputation outweighs Third Degree’s
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`need for the information. Doe 26 supports his position by argu-
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`ing that the risk he was not the individual who violated the
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`copyright is heightened because of his proximity to others in the
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`college dormitory and someone else may have connected to his
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`router and used his IP address to access the video. Doe 26 has
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`not referred the court to any cases showing that a subpoena may
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`be quashed because of the risk of harm to one’s reputation, nor
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`has Doe 26 established that he has a privacy interest in the
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`requested information.
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`8
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 9 of 15
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`A subpoena may have a broad reach and compel disclosure of
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`things commonly accepted as privileged, such as documents subject
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`to the journalistic or doctor-patient confidentiality. First
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`Time Videos, 2011 WL 3498227 at *4. An internet subscriber’s
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`expectation of privacy falls far below this level. "Internet
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`subscribers do not have a reasonable expectation of privacy in
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`their subscriber information — including name, address, phone
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`number, and email address – as they have already conveyed such
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`information to their ISPs." Internet subscribers share their
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`information to set up their internet accounts and cannot proceed
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`to assert a privacy interest over the same information they chose
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`to disclose. First Time Videos, 2011 WL 3498227 at *4.
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` By providing Purdue with his identification and contact
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`information for the purpose of accessing the internet, Doe 26
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`relinquished any privacy interest he may have held in the infor-
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`mation. Doe 26 cannot assert a privacy interest over the infor-
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`mation he previously disclosed voluntarily. See First Time
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`Videos, 2011 WL 3498227 at *4. Third Degree’s request is limited
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`to the information Doe 26 would have provided Purdue to access
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`the internet, including his name, address, and phone number. The
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`information requested by the subpoena is therefore subject to
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`discovery and not shielded by privilege.
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`9
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 10 of 15
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`Although Doe 26 does not explicitly argue that his informa-
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`tion is privileged by the First Amendment, anonymous internet
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`speech implicates the First Amendment. Files downloaded, dis-
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`tributed, or made otherwise available for distribution on a peer
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`to peer file sharing network constitute speech. Sony Music
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`Entertainment, 326 F.Supp.2d at 564; First Time Videos, 2011 WL
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`3498227 at *4. This is because someone sharing a file may be
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`expressing himself through the file. See Sony Music Entertain-
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`ment, 326 F.Supp.2d at 564. Although the file is speech and is
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`entitled to some level of First Amendment protection, the extent
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`of protection is limited. Sony Music Entertainment, 326
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`F.Supp.2d at 564. Copyright infringement is not protected by the
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`First Amendment, and in order to protect one’s interest in a
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`copyright, a "defendants’ First Amendment right to remain anony-
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`mous must give way to plaintiffs’ right to use the judicial
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`process to pursue what appear to be meritorious copyright in-
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`fringement claims." First Time Videos, 2011 WL 3498227 at *5.
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`"Cases evaluating subpoenas seeking identifying information
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`from ISPs regarding subscribers who are parties to litigation
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`have considered a variety of factors to weigh the need for
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`disclosure against First Amendment interests." These factors
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`include:
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`(1) a concrete showing of a prima facie claim
`of actionable harm, (2) specificity of the
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`10
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 11 of 15
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`discovery request, (3) the absence of alter-
`native means to obtain the subpoenaed infor-
`mation, (4) a central need for the subpoenaed
`information to advance the claim, and (5) the
`party's expectation of privacy. (citations
`omitted)
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`Sony Music Entertainment, 326 F.Supp.2d at
`564-565
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`First Time Videos, 2011 WL 3498227 at *5 (applying factors).
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`Each of these factors supports denying Doe 26's motion to quash.
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`Third Degree asserts that Doe 26 infringed on its copyright
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`by downloading and distributing its copyrighted material. "To
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`establish infringement, two elements must be proven: (1) owner-
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`ship of a valid copyright, and (2) copying of constituent ele-
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`ments of the work that are original." Feist Publications, Inc.
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`v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111
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`S.Ct. 1282, 1296, 113 L.Ed.2d. 358 (1991). Third Degree has a
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`registered copyright over the work titled "Illegal Ass 2" that is
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`the subject of this dispute. Third Degree represents that it
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`attached documents identifying the copyright to its complaint in
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`the Northern District of California. Doe 26 does not challenge
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`that Third Degree has a valid copyright over the production.
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`Third Degree also alleges that among the exclusive rights granted
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`under the Copyright Act are the rights to reproduce and to dis-
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`tribute to the public the copyrighted recordings. Third Degree
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`submitted a list of the IP addresses of the subscribers who used
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`11
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 12 of 15
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`an online file-sharing network to download, distribute, or make
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`the film available for distribution via peer to peer networks,
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`thereby infringing on Third Degree’s copyright. The list states
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`the date and time of the recording, the user’s IP address, and
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`the state, and in some cases the city, associated with the IP
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`address. This type of peer to peer sharing has been held to
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`constitute copyright infringement. In re Aimster Copyright Liti-
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`gation, 334 F.3d 643, 653 (7th Cir. 2003) (affirming grant of
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`preliminary injunction against P2P network Aimster in absence of
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`evidence that system was used to transfer non-copyrighted files).
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`Accordingly, Third Degree has made a prima facie showing that its
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`copyright was infringed by the users of the IP addresses.
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`Next, the court considers the specificity of the discovery
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`request. The Northern District of California limited the scope
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`of the subpoena to the name, address, telephone number, and email
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`addresses of the individuals associated with the IP addresses.
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`There is a reasonable likelihood that this information will lead
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`to information sufficient to identify and make possible service
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`upon the Doe defendants. See Sony Music Entertainment, 326
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`F.Supp.2d at 566 (explaining that subpoena requesting informa-
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`tion that would lead to identifying information of possible
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`defendants weighed in favor of upholding subpoena); Dendrite
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`International, Inc., 775 A.2d at 760; Columbia Ins. Co. v. sees-
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`12
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 13 of 15
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`candy.com, 185 F.R.D. 573, 578, 580 (N.D. Cal. 1999). The re-
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`quest is narrowly tailored to achieve this result, and supports
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`upholding the subpoena.
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`Third Degree also has demonstrated that the information
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`sought by the subpoena is necessary to identify the defendants.
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`Third Degree set forth the information it was able to obtain from
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`the individuals who shared the video on the peer to peer network.
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`However, this information was insufficient to identify and com-
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`plete service. Third Degree has a critical need for this infor-
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`mation so it may proceed with its suit, remedy it losses, and
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`prevent further infringement. Third Degree demonstrated that it
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`obtained the information otherwise available and that the subpoe-
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`naed information is necessary for the matter to proceed. Doe 26
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`has not suggested that the information may be otherwise avail-
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`able.
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`Finally, Doe 26's expectation of privacy, if any, is mini-
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`mal. Individuals who download and distribute copyrighted mate-
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`rial without permission cannot expect their actions to be pro-
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`tected. See Verizon, 257 F.Supp.2d at 260-61, 267-68. "[I]f an
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`individual subscriber opens his computer to permit others,
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`through peer-to-peer file-sharing, to download materials from
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`that computer, it is hard to understand just what privacy expec-
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`tation he or she has after essentially opening the computer to
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`13
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 14 of 15
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`the world." Sanchez v. Doyle, 257 F.Supp.2d 266, 267 (D. Conn.
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`2003).
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`In sum, Doe 26 has not established that his identity is
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`protected by the First Amendment. In weighing these factors, the
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`circumstances reflect that Third Degree’s right to judicial
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`process outweighs Doe 26's right to remain anonymous. See Sony
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`Music Entertainment, 326 F.Supp.2d at 567 (weighing factors in
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`favor of upholding subpoena). Third Degree has demonstrated that
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`its need for the information outweighs any privacy interest Doe
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`26 may retain over the information. Doe 26 has not shown that he
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`has any interest in the privacy of the information, that disclo-
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`sure of his identity is protected by the First Amendment, or that
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`the information is subject to any other privilege. Doe 26's only
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`alternative to quash the subpoena is to establish that the infor-
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`mation sought is irrelevant.
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`Doe 26 challenges the relevancy of the subpoena by arguing
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`that the IP address cannot reveal the identity of the infringer
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`because someone else may have violated the copyright while using
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`Doe 26's IP address. "However, objections such as these are
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`essentially irrelevant and premature because they go to the
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`merits of Plaintiff's claims and do not address the propriety vel
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`non of the subpoenas." West Coast Productions, Inc. v. Does 1-
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`5829, ___ F.R.D. ___, 2011 WL 2292239, *3 (D.C. Cir. June 10,
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`14
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`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 15 of 15
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`2011); First Time Videos, 2011 WL 3498227 at *8 (explaining that
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`a denial of liability is not relevant to the validity of a sub-
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`poena). Whether the individuals whose identities are sought by
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`the subpoena are liable remains to be litigated and does not
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`provide grounds upon which to quash the subpoena. The identify
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`of individuals who may have violated the copyright is essential
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`to resolving the copyright holder’s claim. First Time Videos,
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`2011 WL 3498227 at *8.
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`Doe 26 has not demonstrated that the subpoena causes him an
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`undue burden, is protected from disclosure by privilege, or is
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`irrelevant to Third Degree’s complaint. For these reasons, the
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`Amended Motion to Quash Subpoena Served on Purdue University and
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`Memorandum of Authorities [DE 6] filed by the defendant, Doe 26,
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`on July 12, 2011, is DENIED. The Motion to Quash Subpoena [DE 1]
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`filed by the defendant, Doe 26, on July 7, 2011, and the Motion
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`to Quash Subpoena Served on Purdue University and Memorandum of
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`Authorities [DE 4] filed by Doe 26 on July 8, 2011, are DENIED AS
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`MOOT, and the Request for Oral Hearing [DE 5] filed by Doe 26 on
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`July 8, 2011, is DENIED.
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`ENTERED this 6th day of October, 2011
`
`s/ ANDREW P. RODOVICH
` United States Magistrate Judge
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`15