throbber
case 4:11-mc-00002-APR document 13 filed 10/06/11 page 1 of 15
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`LAFAYETTE DIVISION
`
`THIRD DEGREE FILMS, INC., a
`California Corporation,
`
`Plaintiff
`
`v.
`
`DOES 1-2010; DOE 26,
`
`Defendants
`
` )
` )
` )
` )
` )
` ) CIVIL NO. 4:11 MC 2
` )
` )
` )
` )
`
`OPINION AND ORDER
`
`This matter is before the court on the Motion to Quash
`
`Subpoena [DE 1] filed by the defendant, Doe 26, on July 7, 2011;
`
`the Motion to Quash Subpoena Served on Purdue University and
`
`Memorandum of Authorities [DE 4] filed by Doe 26 on July 8, 2011;
`
`the Request for Oral Hearing [DE 5] filed by Doe 26 on July 8,
`
`2011; and the Amended Motion to Quash Subpoena Served on Purdue
`
`University and Memorandum of Authorities [DE 6] filed by Doe 26
`
`on July 12, 2011. In light of the amended motion, DE 1 & 4 are
`
`DENIED AS MOOT. The court finds that the information before it
`
`is sufficient to render a ruling and DENIES the Request for Oral
`
`Hearing [DE 5]. For the reasons set forth below, the Amended
`
`Motion to Quash Subpoena Served on Purdue University and Memoran-
`
`dum of Authorities [DE 6] is DENIED.
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 2 of 15
`
`Background
`
`The plaintiff, Third Degree Films, Inc., filed a complaint
`
`in the Northern District of California against 2,010 unnamed Doe
`
`defendants, alleging that the defendants obtained and distributed
`
`an adult video, "Illegal Ass 2", without its consent in violation
`
`of its copyright. Third Degree identified the defendants by
`
`their internet protocol (IP) addresses. Third Degree filed an
`
`application for early discovery so it could serve subpoenas on
`
`internet service providers (ISPs) to determine the internet
`
`subscriber names, addresses, and e-mail addresses associated with
`
`the IP addresses listed in its complaint. Magistrate Judge
`
`Howard Lloyd of the Northern District of California entered an
`
`order permitting service of the subpoenas on the ISPs.
`
`Third Degree served a subpoena on Purdue University, seeking
`
`to compel disclosure of the name, address, telephone number, and
`
`e-mail address of Doe 26, a 19 year old student enrolled at
`
`Purdue University. On the date of the alleged copyright viola-
`
`tion, he resided in a college dormitory at Purdue. Doe 26's
`
`roommate and other students used his router and Wi-Fi connection
`
`for internet access.
`
`Doe 26 opened this miscellaneous action for the purpose of
`
`quashing the subpoena. Doe 26 argues that he has standing to
`
`quash the subpoena because it seeks disclosure of personal iden-
`
`2
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 3 of 15
`
`tification information over which he has a personal and propri-
`
`etary interest, the information sought is privileged, production
`
`of the information would cause him an undue burden, and the
`
`information is not relevant to Third Degree’s case. Doe 26
`
`further states that there is a high risk that someone else down-
`
`loaded the video because others accessed Doe 26's router and Wi-
`
`Fi connection and could have used his IP address.
`
`To date, none of the defendants have been identified, served
`
`with process, or answered in the case pending in the Northern
`
`District of California.
`
`Discussion
`
`Federal Rule of Civil Procedure 45(c)(3)(A)(iii)-(iv)
`
`provides that "[o]n timely motion, the court by which a subpoena
`
`was issued must quash or modify the subpoena if it . . . requires
`
`disclosure of privileged or other protected material and no
`
`exception or waiver applies; or . . . subjects a person to undue
`
`burden." Further, "the party seeking to quash a subpoena under
`
`Rule 45(c)(3)(A) has the burden of demonstrating that the infor-
`
`mation sought is privileged or subjects a person to an undue
`
`burden." Hodgdon v. Northwestern University, 245 F.R.D. 337, 341
`
`(N.D. Ill. 2007). However, implicit in the rule is the require-
`
`ment that a subpoena seek relevant information. See Stock v.
`
`Integrated Health Plan, Inc., 241 F.R.D. 618, 621-22 (S.D. Ill.
`
`3
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 4 of 15
`
`2007); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y.
`
`1998)("The reach of a subpoena issued pursuant to Fed.R.Civ.P. 45
`
`is subject to the general relevancy standard applicable to dis-
`
`covery under Fed.R.Civ.P. 26(b)(1)."). Relevancy under this rule
`
`is construed broadly to encompass "any matter that bears on, or
`
`that reasonably could lead to other matter[s] that could bear on,
`
`any issue that is or may be in the case." Chavez v. Daimler-
`
`Chrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting
`
`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct.
`
`2380, 2389, 57 L.Ed.2d 253 (1978)). Even when information is not
`
`directly related to the claims or defenses identified in the
`
`pleadings, the information still may be relevant to the broader
`
`subject matter at hand and meet the rule's good cause standard.
`
`Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D.
`
`496, 502 (S.D. Ind. 2003).
`
`The first hurdle Doe 26 must overcome is to show that he has
`
`standing to move to quash the subpoena because the subpoena was
`
`served on Purdue, the ISP, not Doe 26. Doe 26 refers to Rule
`
`45(c)(3)(B) as his basis for standing. Rule 45(c)(3)(B) states
`
`that a person subjected to or affected by a subpoena may move to
`
`quash the subpoena. However, Rule 45(c)(3)(B)(i)-(iii) goes on
`
`to state specific instances where a person affected by a subpoena
`
`may make that request. Such circumstances involve disclosure of
`
`4
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 5 of 15
`
`trade secrets or commercial information, disclosure of an
`
`unretained expert’s opinion, and where a person, who is not a
`
`party or a party’s officer, will incur significant expense to
`
`travel more than 100 miles. None of these conditions are appli-
`
`cable.
`
`The arguments Doe 26 raises in support of quashing the sub-
`
`poena, including undue burden, privilege, and relevancy, more
`
`appropriately fall under Rule 45(c)(3)(A). Subsection (A) does
`
`not state that a person affected by a subpoena may move to quash
`
`it.
`
`A Doe defendant lacks standing to move to quash a subpoena
`
`on the ground of undue burden when the subpoena is directed to
`
`the ISP rather than to him. First Time Videos, LLC v. Does 1-
`
`500, ___ F.Supp.2d ___, 2011 WL 3498227, *3 (N.D. Ill. August 9,
`
`2011); Voltage Pictures, LLC v. Does 1-5000, ___ F.Supp.2d ___,
`
`2011 WL 1807438, *3 (D.C. Cir. May 12, 2011). This is because
`
`the subpoena demands action on behalf of the ISP, and the Doe
`
`defendant is not required to produce any information, nor would
`
`the Doe defendant face any repercussions for failing to comply.
`
`First Time Videos, 2011 WL 3498227 at *7. It would defy logic to
`
`believe that the Doe defendant is unduly burdened when he is not
`
`required to take any action or produce any information. For this
`
`reason, Doe 26 may not move to quash the subpoena served on
`
`5
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 6 of 15
`
`Purdue on grounds of undue burden because the subpoena was
`
`directed to the ISP and requires no action on his behalf.
`
`Doe 26 also argues that the subpoena should be quashed
`
`because Doe 26 has a privacy interest in the information. Doe 26
`
`has standing to assert his privacy interest in the requested
`
`information. See Worldwide Film Entertainment, LLC v. Does 1-
`
`749, 2010 WL 1994891, *2, n.2 (D.C. Cir. 2010) (citing Covad
`
`Communications Co. v. Revonet, Inc., 2009 WL 3739278, *3 (D.S.D.
`
`Nov. 4, 2009) ("[o]rdinarily a party does not have standing to
`
`object to a subpoena served on a non-party, . . . a party does
`
`have standing to object to a subpoena served upon a non-party
`
`which requires the production of privileged information.")
`
`(citation omitted)). However, Doe 26 has not demonstrated why
`
`the requested information is privileged and not subject to
`
`discovery.
`
`Does 26 relies exclusively on VPR Internationale v. Does 1-
`
`1017, Cause No. 2:11-cv-2068 (C.D. Ill. Apr. 29, 2011), to show
`
`that his identification information should not be subject to
`
`discovery. In VPR, the court denied a motion for expedited
`
`discovery requested for the purpose of serving subpoenas on ISPs
`
`to identify the internet subscribers associated with the IP
`
`addresses accused of violating the plaintiff’s copyright. The
`
`court explained that the risk that the copyright infringer might
`
`6
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 7 of 15
`
`be someone other than the subscriber, such as a neighbor or
`
`visitor, outweighed VDR’s need for discovery.
`
`However, the question currently before the court is not
`
`whether expedited discovery is warranted, as it was in VDR. The
`
`Northern District of California previously made the determination
`
`to allow expedited discovery and weighed this risk. The question
`
`this court must assess is whether the information sought by the
`
`subpoena is privileged or protected matter. See Rule
`
`45(c)(3)(A)(iii) (listing the grounds on which a subpoena may be
`
`quashed). Courts have addressed this issue in a variety of
`
`manners. Sony Music Entertainment, Inc. v. Does 1-40, 326
`
`F.Supp.2d 556, 563-64 (S.D.N.Y. 2004) (citing In re Verizon
`
`Internet Services, 257 F.Supp.2d 244, 267-68, 275 (D.D.C. 2003)
`
`(denying motion to quash subpoena because the subpoena provided
`
`adequate safeguards to protect the internet users’ First Amend-
`
`ment rights); Recording Indus. Ass'n of America, Inc. v. Verizon
`
`Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003) (denying
`
`an ISP's motion to quash a subpoena seeking subscriber informa-
`
`tion for users who had allegedly engaged in copyright infringe-
`
`ment); In re Subpoena Duces Tecum to America Online, Inc., No.
`
`40570, 2000 WL 1210372, *1 (Va. Cir. Jan. 31, 2000) (denying
`
`motion to quash subpoena seeking identity of Doe defendants who
`
`made defamatory statements and disclosed confidential information
`
`7
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 8 of 15
`
`online); Doe v. 2TheMart.Com, 140 F.Supp.2d 1088, 1090, 1097-98
`
`(W.D. Wash. 2001) (granting motion to quash subpoena seeking
`
`identities of anonymous nonparty ISP subscribers in shareholder
`
`derivative suit); Anderson v. Hale, No. 00 Civ. 2021, 2001 WL
`
`503045, *9 (N.D. Ill. May 10, 2001) (granting motion to quash
`
`subpoena seeking identifying information from ISP about subscrib-
`
`ers affiliated with organization); Dendrite International, Inc.
`
`v. Doe, 775 A.2d 756, 760, 772 (N.J. 2001) (denying motion for
`
`expedited discovery to obtain identity of ISP subscriber due to
`
`failure to establish prima facie defamation claim)).
`
`Doe 26's motion does not make it clear on what grounds he
`
`asserts the information is privileged, although he repeatedly
`
`mentions that he has a privacy interest in the information and
`
`that the risk of harm to his reputation outweighs Third Degree’s
`
`need for the information. Doe 26 supports his position by argu-
`
`ing that the risk he was not the individual who violated the
`
`copyright is heightened because of his proximity to others in the
`
`college dormitory and someone else may have connected to his
`
`router and used his IP address to access the video. Doe 26 has
`
`not referred the court to any cases showing that a subpoena may
`
`be quashed because of the risk of harm to one’s reputation, nor
`
`has Doe 26 established that he has a privacy interest in the
`
`requested information.
`
`8
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 9 of 15
`
`A subpoena may have a broad reach and compel disclosure of
`
`things commonly accepted as privileged, such as documents subject
`
`to the journalistic or doctor-patient confidentiality. First
`
`Time Videos, 2011 WL 3498227 at *4. An internet subscriber’s
`
`expectation of privacy falls far below this level. "Internet
`
`subscribers do not have a reasonable expectation of privacy in
`
`their subscriber information — including name, address, phone
`
`number, and email address – as they have already conveyed such
`
`information to their ISPs." Internet subscribers share their
`
`information to set up their internet accounts and cannot proceed
`
`to assert a privacy interest over the same information they chose
`
`to disclose. First Time Videos, 2011 WL 3498227 at *4.
`
` By providing Purdue with his identification and contact
`
`information for the purpose of accessing the internet, Doe 26
`
`relinquished any privacy interest he may have held in the infor-
`
`mation. Doe 26 cannot assert a privacy interest over the infor-
`
`mation he previously disclosed voluntarily. See First Time
`
`Videos, 2011 WL 3498227 at *4. Third Degree’s request is limited
`
`to the information Doe 26 would have provided Purdue to access
`
`the internet, including his name, address, and phone number. The
`
`information requested by the subpoena is therefore subject to
`
`discovery and not shielded by privilege.
`
`9
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 10 of 15
`
`Although Doe 26 does not explicitly argue that his informa-
`
`tion is privileged by the First Amendment, anonymous internet
`
`speech implicates the First Amendment. Files downloaded, dis-
`
`tributed, or made otherwise available for distribution on a peer
`
`to peer file sharing network constitute speech. Sony Music
`
`Entertainment, 326 F.Supp.2d at 564; First Time Videos, 2011 WL
`
`3498227 at *4. This is because someone sharing a file may be
`
`expressing himself through the file. See Sony Music Entertain-
`
`ment, 326 F.Supp.2d at 564. Although the file is speech and is
`
`entitled to some level of First Amendment protection, the extent
`
`of protection is limited. Sony Music Entertainment, 326
`
`F.Supp.2d at 564. Copyright infringement is not protected by the
`
`First Amendment, and in order to protect one’s interest in a
`
`copyright, a "defendants’ First Amendment right to remain anony-
`
`mous must give way to plaintiffs’ right to use the judicial
`
`process to pursue what appear to be meritorious copyright in-
`
`fringement claims." First Time Videos, 2011 WL 3498227 at *5.
`
`"Cases evaluating subpoenas seeking identifying information
`
`from ISPs regarding subscribers who are parties to litigation
`
`have considered a variety of factors to weigh the need for
`
`disclosure against First Amendment interests." These factors
`
`include:
`
`(1) a concrete showing of a prima facie claim
`of actionable harm, (2) specificity of the
`
`10
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 11 of 15
`
`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)
`
`Sony Music Entertainment, 326 F.Supp.2d at
`564-565
`
`First Time Videos, 2011 WL 3498227 at *5 (applying factors).
`
`Each of these factors supports denying Doe 26's motion to quash.
`
`Third Degree asserts that Doe 26 infringed on its copyright
`
`by downloading and distributing its copyrighted material. "To
`
`establish infringement, two elements must be proven: (1) owner-
`
`ship of a valid copyright, and (2) copying of constituent ele-
`
`ments of the work that are original." Feist Publications, Inc.
`
`v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111
`
`S.Ct. 1282, 1296, 113 L.Ed.2d. 358 (1991). Third Degree has a
`
`registered copyright over the work titled "Illegal Ass 2" that is
`
`the subject of this dispute. Third Degree represents that it
`
`attached documents identifying the copyright to its complaint in
`
`the Northern District of California. Doe 26 does not challenge
`
`that Third Degree has a valid copyright over the production.
`
`Third Degree also alleges that among the exclusive rights granted
`
`under the Copyright Act are the rights to reproduce and to dis-
`
`tribute to the public the copyrighted recordings. Third Degree
`
`submitted a list of the IP addresses of the subscribers who used
`
`11
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 12 of 15
`
`an online file-sharing network to download, distribute, or make
`
`the film available for distribution via peer to peer networks,
`
`thereby infringing on Third Degree’s copyright. The list states
`
`the date and time of the recording, the user’s IP address, and
`
`the state, and in some cases the city, associated with the IP
`
`address. This type of peer to peer sharing has been held to
`
`constitute copyright infringement. In re Aimster Copyright Liti-
`
`gation, 334 F.3d 643, 653 (7th Cir. 2003) (affirming grant of
`
`preliminary injunction against P2P network Aimster in absence of
`
`evidence that system was used to transfer non-copyrighted files).
`
`Accordingly, Third Degree has made a prima facie showing that its
`
`copyright was infringed by the users of the IP addresses.
`
`Next, the court considers the specificity of the discovery
`
`request. The Northern District of California limited the scope
`
`of the subpoena to the name, address, telephone number, and email
`
`addresses of the individuals associated with the IP addresses.
`
`There is a reasonable likelihood that this information will lead
`
`to information sufficient to identify and make possible service
`
`upon the Doe defendants. See Sony Music Entertainment, 326
`
`F.Supp.2d at 566 (explaining that subpoena requesting informa-
`
`tion that would lead to identifying information of possible
`
`defendants weighed in favor of upholding subpoena); Dendrite
`
`International, Inc., 775 A.2d at 760; Columbia Ins. Co. v. sees-
`
`12
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 13 of 15
`
`candy.com, 185 F.R.D. 573, 578, 580 (N.D. Cal. 1999). The re-
`
`quest is narrowly tailored to achieve this result, and supports
`
`upholding the subpoena.
`
`Third Degree also has demonstrated that the information
`
`sought by the subpoena is necessary to identify the defendants.
`
`Third Degree set forth the information it was able to obtain from
`
`the individuals who shared the video on the peer to peer network.
`
`However, this information was insufficient to identify and com-
`
`plete service. Third Degree has a critical need for this infor-
`
`mation so it may proceed with its suit, remedy it losses, and
`
`prevent further infringement. Third Degree demonstrated that it
`
`obtained the information otherwise available and that the subpoe-
`
`naed information is necessary for the matter to proceed. Doe 26
`
`has not suggested that the information may be otherwise avail-
`
`able.
`
`Finally, Doe 26's expectation of privacy, if any, is mini-
`
`mal. Individuals who download and distribute copyrighted mate-
`
`rial without permission cannot expect their actions to be pro-
`
`tected. See Verizon, 257 F.Supp.2d at 260-61, 267-68. "[I]f an
`
`individual subscriber opens his computer to permit others,
`
`through peer-to-peer file-sharing, to download materials from
`
`that computer, it is hard to understand just what privacy expec-
`
`tation he or she has after essentially opening the computer to
`
`13
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 14 of 15
`
`the world." Sanchez v. Doyle, 257 F.Supp.2d 266, 267 (D. Conn.
`
`2003).
`
`In sum, Doe 26 has not established that his identity is
`
`protected by the First Amendment. In weighing these factors, the
`
`circumstances reflect that Third Degree’s right to judicial
`
`process outweighs Doe 26's right to remain anonymous. See Sony
`
`Music Entertainment, 326 F.Supp.2d at 567 (weighing factors in
`
`favor of upholding subpoena). Third Degree has demonstrated that
`
`its need for the information outweighs any privacy interest Doe
`
`26 may retain over the information. Doe 26 has not shown that he
`
`has any interest in the privacy of the information, that disclo-
`
`sure of his identity is protected by the First Amendment, or that
`
`the information is subject to any other privilege. Doe 26's only
`
`alternative to quash the subpoena is to establish that the infor-
`
`mation sought is irrelevant.
`
`Doe 26 challenges the relevancy of the subpoena by arguing
`
`that the IP address cannot reveal the identity of the infringer
`
`because someone else may have violated the copyright while using
`
`Doe 26's IP address. "However, objections such as these are
`
`essentially irrelevant and premature because they go to the
`
`merits of Plaintiff's claims and do not address the propriety vel
`
`non of the subpoenas." West Coast Productions, Inc. v. Does 1-
`
`5829, ___ F.R.D. ___, 2011 WL 2292239, *3 (D.C. Cir. June 10,
`
`14
`
`

`
`case 4:11-mc-00002-APR document 13 filed 10/06/11 page 15 of 15
`
`2011); First Time Videos, 2011 WL 3498227 at *8 (explaining that
`
`a denial of liability is not relevant to the validity of a sub-
`
`poena). Whether the individuals whose identities are sought by
`
`the subpoena are liable remains to be litigated and does not
`
`provide grounds upon which to quash the subpoena. The identify
`
`of individuals who may have violated the copyright is essential
`
`to resolving the copyright holder’s claim. First Time Videos,
`
`2011 WL 3498227 at *8.
`
`Doe 26 has not demonstrated that the subpoena causes him an
`
`undue burden, is protected from disclosure by privilege, or is
`
`irrelevant to Third Degree’s complaint. For these reasons, the
`
`Amended Motion to Quash Subpoena Served on Purdue University and
`
`Memorandum of Authorities [DE 6] filed by the defendant, Doe 26,
`
`on July 12, 2011, is DENIED. The Motion to Quash Subpoena [DE 1]
`
`filed by the defendant, Doe 26, on July 7, 2011, and the Motion
`
`to Quash Subpoena Served on Purdue University and Memorandum of
`
`Authorities [DE 4] filed by Doe 26 on July 8, 2011, are DENIED AS
`
`MOOT, and the Request for Oral Hearing [DE 5] filed by Doe 26 on
`
`July 8, 2011, is DENIED.
`
`ENTERED this 6th day of October, 2011
`
`s/ ANDREW P. RODOVICH
` United States Magistrate Judge
`
`15

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