Case 3:24-mc-80005-TSH Document 26 Filed 02/07/24 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE SUBPOENA TO:
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`REDDIT, INC.
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`Case No. 24-mc-80005-TSH
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`ORDER DENYING MOTION TO
`COMPEL
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`Re: Dkt. No. 1
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`I.
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`INTRODUCTION
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`Voltage Holdings, LLC and Screen Media Ventures, LLC move this Court to grant an
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`order compelling Reddit, Inc. to produce documents in response to a subpoena issued in the
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`bankruptcy matter In re: Frontier Commc’ns Corp., Case No. 20-22476-MG, in the Bankruptcy
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`Court for the Southern District of New York. ECF No. 1.1 Reddit has filed an opposition (ECF
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`No. 20) and Movants filed a reply (ECF No. 21). The undersigned finds this matter suitable for
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`disposition without oral argument and VACATES the February 15, 2024 hearing. See Civ. L.R.
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`7-1(b). Having considered the parties’ positions, relevant legal authority, and the record in this
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`case, the Court DENYING the motion for the following reasons.
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`II. BACKGROUND
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`On April 14, 2020, Frontier Communications Corporation filed a voluntary petition for
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`Chapter 11 bankruptcy. Bankr. Case No. 20-22476-rdd, Bankr. Case ECF No. 1. Movants are
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`movie companies that filed proofs of claim against Frontier for copyright infringement of their
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`1 Laundry Films, Inc., Killing Link Distribution, LLC, Family of the Year Productions, LLC, who
`are claimants in the underlying bankruptcy action, have filed a notice of joinder to movants’
`motion. ECF No. 17.
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`Case 3:24-mc-80005-TSH Document 26 Filed 02/07/24 Page 2 of 10
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`movies. On November 6, 2023, counsel for Frontier and Movants submitted a joint report
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`addressing whether the bankruptcy court should authorize the issuance of subpoenas that require
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`Frontier to disclose subscribers who allegedly infringed Movants’ copyrights. Bank. Case ECF
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`No. 2227. On December 1 the bankruptcy court ruled that Movants had established good cause to
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`require Frontier to disclose the alleged infringing subscribers’ information. Bank. Case ECF No.
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`2233.
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`Reddit is a community of online communities. Schottlaender Decl. ¶ 2, ECF No. 20-2.
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`Within those communities, called “subreddits,” users gather to discuss shared interests. Id. Users
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`generally participate on the platform pseudonymously, and Reddit does not require that they use or
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`provide Reddit with their legal names or addresses. Id.
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`On Dec. 17, 2023, Movants served a subpoena to Reddit requesting “IP address log
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`information from 1/1/2017 to present for users: ‘Gibson125T’; ‘Sankerin’; ‘Old_Package540’,
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`‘Arceist_Justin’; ‘ZeroHart’; ‘Cyb3rR3b0rn’”. Mot., Ex. 1. The subpoena seeks login
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`information for certain Reddit users “who boasted of using the service of the Internet service
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`provider Frontier Communications for piracy on Reddit’s platform.” Mot. at 2-3. After Reddit
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`served objections, id., Ex. 2, Movants filed the present motion on January 9, 2024,
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`III. LEGAL STANDARD
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`Federal Rule of Civil Procedure 45 governs discovery of non-parties. A party serving a
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`subpoena may, “on notice to the commanded person, . . . move the court for the district where
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`compliance is required for an order compelling production.” Fed. R. Civ. P. 45(d)(2)(B)(i). The
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`scope of allowable discovery under Rule 45 is the same as the scope of discovery permitted under
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`Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., 2016 WL 3162218, at
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`*2 (N.D. Cal. June 7, 2016) (citing Fed. R. Civ. P. 45 advisory comm’s note (1970); Fed. R. Civ.
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`P. 34(a)). Rule 26 permits discovery “regarding any non-privileged matter that is relevant to any
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`party’s claim or defense and proportional to the needs of the case considering the importance of
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`the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
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`information, the parties’ resources, the importance of the discovery in resolving the issues, and
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`whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.
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`Case 3:24-mc-80005-TSH Document 26 Filed 02/07/24 Page 3 of 10
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`Civ. P. 26(b)(1).
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`The Court must limit the frequency or extent of discovery if it determines that: “(i) the
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`discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
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`source that is more convenient, less burdensome, or less expensive; (ii) the party seeking
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`discovery has had ample opportunity to obtain the information by discovery in the action; or (iii)
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`the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
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`26(b)(2)(C). Rule 45 further provides that “the court for the district where compliance is required
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`must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires
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`a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure
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`of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person
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`to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).
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`IV. DISCUSSION
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`Movants divide the Reddit user comments into two categories: “(i) Comments that
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`establish that Frontier has not reasonably implemented a policy for terminating repeat infringers
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`sufficient for a safe harbor affirmative defense as required by 17 U.S.C. § 512; and (ii) Comments
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`that establish that the ability to freely pirate without consequence was a draw to becoming a
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`subscriber of Frontier and/or subscribers are motivated to use Frontier’s service for pirating
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`content without consequence.” Mot. at 6. In support of their request, Movants provide the
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`following Reddit posts:
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`In the Reddit discussion forum dedicated explicitly to “Piracy”,
`Reddit user “Gibson125T” admitted that “From may 7th up until
`about a week ago, I got a total of 44 emails from frontier about
`downloading torrents and that it could terminate service. They
`haven't yet. And I kinda feel like if they didn't do it after 44 emails.
`That they won’t…”
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`***
`forum “Frontierfios”, Reddit user
`In a Reddit discussion
`“Old_Package540” admitted, “I torrent every once in a while, been
`getting dmca notices quite often. Has anyone been shut off because
`of them or is it all just threats?”
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`***
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`In the Reddit “Piracy” forum, Reddit user "Arceist_Justin" admitted,
`“Been using Frontier DSL for years. Despite the sh*tty internet, they
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`Case 3:24-mc-80005-TSH Document 26 Filed 02/07/24 Page 4 of 10
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`didn't give a sh*t what I downloaded. But I download ONE game just
`for screenshots and Comcast throws me into a legal battle.”
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`***
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`In the Reddit “Frontierfios” forum, Reddit user "ZeroHart" states that
`Frontier was terminating his account but failed to send him/her any
`copy of at least 10 notices that were sent to Frontier concerning piracy
`at her/his account.
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`***
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`In the Reddit “Piracy” forum, Reddit user"Cyb3rR3b0rn" admits to
`using Frontier’s service to pirate from the notorious piracy websites
`1337x and PirateBay and that “I've been torrenting unprotected for
`like a decade and never gotten [a DMCA notice]”.
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`Id. at 6-8. Movants argue the information they seek is relevant and proportional to the needs of
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`the case because “they support Movants’ assertion that the ability to pirate content efficiently
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`without any consequences is a draw for becoming a Frontier subscriber (an element of vicarious
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`liability) and that Frontier does not have an effective policy for terminating repeat infringers
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`(rebutting Frontier’s purported DMCA safe harbor).” Id. at 9.
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`Reddit argues the Court should deny the motion because it is an unmasking subpoena,
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`targeting a potential witness rather than a potential defendant, and is therefore subjected to First
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`Amendment scrutiny. Opp’n at 4. Reddit argues the evidence Movants seek can instead be
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`obtained from both the defendant internet service provider (“ISP”) itself and from a number of ISP
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`subscribers that Movants know to have engaged in copyright infringement, already in Movants’
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`possession. Id. at 2.
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`A.
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`Legal Standard
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`The First Amendment protects the rights of individuals to speak anonymously.
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`Watchtower Bible & Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 166–67
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`(2002); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42 (1995). “An author’s decision
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`to remain anonymous, like other decisions concerning omissions or additions to the content of a
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`publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre,
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`514 U.S. at 352. The Ninth Circuit recognizes that the decision to remain anonymous extends to
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`anonymous speech made on the internet. In re Anonymous Online Speakers, 661 F.3d 1168, 1173
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`(9th Cir. 2011) (“[O]nline speech stands on the same footing as other speech – there is ‘no basis
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`for qualifying the level of First Amendment scrutiny that should be applied’ to online speech.”)
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`(quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)). “When adjudicating
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`discovery requests that would unmask an anonymous speaker, then, courts must consider the First
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`Amendment implications of disclosure—just as they would when adjudicating any other discovery
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`request that risks infringing First Amendment rights.” In re DMCA § 512(h) Subpoena to Twitter,
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`Inc., 608 F. Supp. 3d 868, 876 (N.D. Cal. 2022).
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`The Ninth Circuit has recognized that internet platforms can assert the First Amendment
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`rights of their users, based on the close relationship between the platform and its users and the
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`“genuine obstacles” users face in asserting their rights to anonymity. In re Grand Jury Subpoena,
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`875 F.3d 1179, 1183 n.2 (9th Cir. 2017). When third-party providers such as Reddit receive
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`subpoenas to produce identifying information of posters of anonymous speech, courts apply the
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`appropriate First Amendment standard to ensure that a person’s right to anonymous speech is
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`protected. Music Grp. Macao Com. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal.
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`2015); In re Anonymous Online Speakers, 661 F.3d at 1172–77. In Anonymous Online Speakers,
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`the Ninth Circuit reviewed the developing tests in the area of anonymous online speech and left it
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`to the discretion of district courts to choose the proper standard in a given case, based on the
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`nature of the speech at issue. Id. at 1174–77; see, e.g., Art of Living Found. v. Does 1-10, 2011
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`WL 5444622, at *5 (N.D. Cal. Nov. 9, 2011) (“[I]n choosing the proper standard to apply, the
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`district court should focus on the nature of the [defendant’s] speech[.]”) (cleaned up); SI03, Inc. v.
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`Bodybuilding.com, LLC, 441 F. App’x 431, 431–32 (9th Cir. 2011) (same). “For example, . . .
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`commercial speech should be afforded less protection than political, religious, or literary
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`speech[.]” In re Anonymous Online Speakers, 661 F.3d at 1177.
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`In “evaluating the First Amendment rights of anonymous Internet users in the context of a
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`third-party civil subpoena,” district courts have followed the approach taken in Doe v.
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`2TheMart.com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001). Rich v. Butowsky, 2020 WL 5910069,
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`at *3–4 (N.D. Cal. Oct. 6, 2020); In re Anonymous Online Speakers, 661 F.3d at 1176 (describing
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`the 2TheMart.com test). Under that approach, disclosure of anonymous users’ identities is
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`appropriate only “in the exceptional case where the compelling need for the discovery sought
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`outweighs the First Amendment rights of the anonymous speaker.” 2TheMart.com, 140 F. Supp.
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`2d at 1095. Courts consider four factors: whether “(1) the subpoena seeking the information was
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`issued in good faith and not for any improper purpose, (2) the information sought relates to a core
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`claim or defense, (3) the identifying information is directly and materially relevant to that claim or
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`defense, and (4) information sufficient to establish or to disprove that claim or defense is
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`unavailable from any other source.” Id.; Rich, 2020 WL 5910069, at *3–4. This is a “high[ ]
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`standard,” In re Anonymous Online Speakers, 661 F.3d at 1176, and the factors are weighed
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`“based on the circumstances of a given case,” Rich, 2020 WL 5910069, at *4; Sines v. Kessler,
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`2018 WL 3730434, at *13 n.16 (N.D. Cal. Aug. 6, 2018).
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`B.
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`Analysis
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`A higher standard for unmasking a non-party witness exists than for unmasking a potential
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`defendant because–unlike the need to identify a potential defendant–litigation can often continue
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`without interfering with a non-party witness’s First Amendment right to anonymity. 2TheMart,
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`140 F. Supp. 2d at 1095. Consequently, other courts in this District have recognized that a
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`dispositive “question here is whether the information is available from ‘any’ other source,” which
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`is “a high standard.” See In re Reddit, Inc., __ F. Supp. 3d __, 2023 WL 3163455 (N.D. Cal. Apr.
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`28, 2023) (“Reddit I”); In re Reddit, Inc., 023 WL 4849434 (N.D. Cal. July 29, 2023) (“Reddit
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`II”); compare Rich, 2020 WL 5910069, at *5 (subpoena enforced because the anonymous account
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`was a singularly “essential witness” for the litigants).
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`In Reddit I, the copyright holders, including Voltage Holdings, sought to unmask seven
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`Reddit users who had generally posted about internet service providers and about copyright
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`infringement notices they received from those providers. 2023 WL 3163455, at *2. Those
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`copyright holders suggested that unmasking the Reddit users would help the copyright holders
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`establish that a defendant ISP in the underlying litigation did not adequately implement a repeat
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`infringer policy for purposes of seeking a Digital Millennium Copyright Act (“DMCA”) safe
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`harbor. Id. The court analyzed the copyright owners’ motion under the First Amendment
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`standard articulated in 2TheMart.com and, applying that standard, denied the copyright holders’
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`motion to compel Reddit to produce identifying information, recognizing that under the
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`circumstances, it was implausible to believe that the Reddit users served as an “irreplaceable
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`source” of evidence in the copyright holders’ underlying litigation. Id. at *4. The court held the
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`copyright holders could not meet the 2theMart standard because:
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`there is information available from another source to establish or
`disprove the plaintiffs’ three alleged categories of relevance.
`Specifically, [the ISP] is the party that (according to the plaintiffs)
`“has not reasonably implemented a policy for terminating repeat
`infringers,” “controls the conduct of its subscribers,” and allows its
`customers “to freely pirate without consequence.” The high
`likelihood that this information is available from [the ISP] defeats the
`plaintiffs’ subpoena.
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`Id.
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`Two months later, many of the same copyright holders (with a few added) filed Reddit II.
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`Both Voltage Holdings and Screen Media Ventures were movants in Reddit II. The second case
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`presented nearly identical facts to Reddit I but involved different Reddit users and a different
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`defendant ISP. Reddit II, 2023 WL 4849434, at *1. Notably, in Reddit II, the copyright holders
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`had requested and received from the defendant ISP a list of that ISP’s top infringing IP addresses.
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`Id. The court again applied 2TheMart and analyzed why the copyright holders were seeking to
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`unmask Reddit users, recognizing that those users would hold “at best weak evidence about [the
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`ISP’s] insufficient policy regarding repeat infringers or its appeal to pirating subscribers.” Id. at
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`*4. As the court pointed out, the copyright owners’ ability to subpoena “even a subset of” the
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`individuals identified by the defendant ISP “would [] yield information at least equivalent to, if
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`not better than, information from the six Reddit subscribers.” Id. On those bases, the Court again
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`denied the copyright holders’ motion to compel Reddit to produce identifying information. Id.
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`The present case is similar, in that Movants seek to unmask the IP addresses of six Reddit
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`users who discussed receiving DMCA notices from Frontier, based on the theory that these Reddit
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`users have made comments that “support Movants’ assertion that the ability to pirate content
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`efficiently without any consequences is a draw for becoming a Frontier subscriber [] and that
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`Frontier does not have an effective policy for terminating repeat infringers (rebutting Frontier’s
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`purported DMCA safe harbor).” Mot. at 9. However, this case is also similar in that there is
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`information available from another source, as Movants themselves note the underlying bankruptcy
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`court adjudicating the copyright litigation has already ruled they can obtain identifying
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`information from Frontier for IP addresses known to have pirated using Frontier’s network. Id. at
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`4.
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`Movants suggest this case is distinguishable from Reddit I and Reddit II because the
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`present motion does not seek to compel “anonymous users’ identities” but is instead “limited to
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`requesting the Reddit users’ IP address logs.” Mot. at 9. While the Court is unaware of any cases
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`in the Ninth Circuit in which a court has declined to apply a First Amendment unmasking standard
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`for IP addresses, other courts have recognized that IP addresses are essential to unmasking
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`because an “IP address cannot be made up in the same way that a poster may provide a false name
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`and address.” Obi Pharma, Inc. v. Does 1-20, 2017 WL 1520085, at *5 (S.D. Cal. Apr. 27, 2017).
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`For this reason, the Court finds no reason to believe provision of an IP address is not unmasking
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`subject to First Amendment scrutiny.
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`Movants also cannot show that the information they seek here is unavailable from other
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`sources. As in Reddit I and II, Movants justify their request by arguing that they seek evidence: (i)
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`that “the ability to freely pirate” drew customers to Frontier; and (ii) that Frontier failed to
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`implement a repeat infringer policy. Mot. at 6. But evidence on those issues is available and
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`obtainable outside of these six targeted Reddit users such that it is not “essential” and fails
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`2TheMart. For example, in Reddit II, the movants admitted they were in possession of a list of IP
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`addresses that had most frequently infringed copyrights using that defendant ISP’s networks. The
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`court recognized that admission to be fatal under 2TheMart; where the movants already have the
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`“top pirating IP addresses . . . it is not obvious why subpoenaing even a subset of those addresses
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`would not yield information at least equivalent to, if not better than, information from the six
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`Reddit subscribers.” Reddit II, 2023 WL 4849434, at *4. Here, Movants again admit that they
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`already have “pirating [IP] addresses.” Mot. at 4; see also Bank. Case ECF No. 2233 at 2 (Dec. 1,
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`2023) (“Movie Company Claimants have identified the IP addresses of the alleged infringers.”).
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`And Frontier has indicated it will provide Movants with identifying information for those IP
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`addresses upon receipt of a subpoena. Bank. Case ECF No. 2255 (“[W]e advised Mr. Culpepper
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`that in the absence of issuance of subpoenas (which require a further order of the Court as set forth
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`in your opinion concerning this issue) Frontier cannot provide the identification information of its
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`subscribers without violating the Cable Act.”). If Movants sought further information, they need
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`only subpoena the ISP for the subscriber information associated with that IP address, as the ISP
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`does not share Reddit’s interest in protecting the anonymity of that user. See, e.g., In re Grand
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`Jury Subpoena, 875 F.3d at 1183 n.2 (recognizing a platform’s third-party standing to assert the
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`First Amendment rights of its users because the platform has a “sufficiently close relationship to
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`its users”) (citing McCollum v. Cal. Dep’t. of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011)).2
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`Movants argue that even if they obtain subscriber information for those infringer IP
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`addresses, “this information would not provide them with documented evidence that the ability to
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`pirate freely was a draw to using Frontier’s service or that Frontier failed to reasonably implement
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`a policy for terminating repeat infringers.” Mot. at 12. But Reddit has stated it does not have any
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`such “documented evidence” in its possession either —it only has IP addresses. Opp’n at 8. And
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`to the extent Movants are suggesting that the Reddit posts themselves are “documented evidence,”
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`Movants need not unmask the Reddit users to admit that evidence. See, e.g., Mot. at 11-12
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`(conceding that the Reddit posts themselves “refer to Defendant’s lack of a policy for terminating
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`repeat infringers and/or failure to reasonably implement such a policy”); see also 2TheMart, 140
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`F. Supp. 2d at 1097 (“The messages are available for use at trial, and TMRT can factually support
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`its defense without encroaching on the First Amendment rights of the Internet users.”); La Force
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`v. GoSmith, Inc., 2017 WL 9938681, at *3 (N.D. Cal. Dec. 12, 2017) (describing how a litigant
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`can authenticate and admit printouts of webpages as evidence).
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`Finally, Movants argue that because the Reddit users were “boasting of criminal conduct
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`2 Movants also cite Fourth Amendment jurisprudence and consumer privacy class action caselaw,
`arguing “[t]he Ninth Circuit has consistently held that a person has no legitimate expectation of
`privacy in information they voluntarily turn over to third parties.” Mot. at 10 (citing United States
`v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (an evidentiary suppression case holding that
`government surveillance of a criminal defendant’s internet activity did not constitute a search
`under the Fourth Amendment) and In re Zynga Privacy Litigation, 750 F.3d 1098, 1108–09 (9th
`Cir. 2014) (holding that internet referrer headers do not constitute “content” under the Electronic
`Communications Privacy Act such that disclosure of referrer headers could sustain a civil claim
`under that law)). These cases are not relevant here, where the Reddit users’ First Amendment
`rights to anonymity are at issue, and neither Forrester nor Zynga suggest that IP addresses are
`excluded from First Amendment review. Indeed, neither addresses the First Amendment at all.
`9
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`Northern District of California
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`United States District Court
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`

`

`Case 3:24-mc-80005-TSH Document 26 Filed 02/07/24 Page 10 of 10
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`
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`violating [copyright law],” the 2TheMart standard should not apply because “copyright law
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`includes built-in First Amendment accommodations such as the fair use defense.” Mot. at. 11.
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`Movants cite In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882–83 (N.D. Cal.
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`2020), a case in which the court held that it need not conduct a First Amendment analysis at the
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`unmasking stage because the to-be defendant in a copyright infringement action would have an
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`opportunity to present their First Amendment defense by asserting fair use. However, this
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`argument has been rejected twice, both in Reddit I and Reddit II, because of the distinction that the
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`anonymous users here are not going to be defendants in any infringement actions. See Mot. at 9-
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`10 (“Movants are not seeking to retaliate economically or officially against these Reddit users.
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`Rather, Movants wish to use their comments as evidence . . . .”). “The fair use defense is available
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`only to those accused of copyright infringement, and the Reddit users at issue here are uninvolved
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`third parties.” Reddit I, 2023 WL 3163455, at *3 (citing In re DMCA Subpoena to Reddit, 441 F.
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`Supp. 3d at 882–83); see also Reddit II, 2023 WL 4849434, at *3 (declining to apply the lesser
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`“fair use” standard to a Reddit user because that user “is a witness, not a defendant. He thus does
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`[not] have available to him the built-in First Amendment accommodations of copyright law, such
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`as the fair use defense.”) (cleaned up).
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`In sum, the Court finds Movants cannot meet the 2TheMart standard because the evidence
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`they seek can be obtained from other sources, including from Frontier in the normal course of
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`discovery. While Movants note the discovery period in their underlying litigation ends in June
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`2024 (Mot. at 12), this still allows sufficient time for Movants to issue a subpoena to Frontier for
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`subscriber information and, if necessary, to seek redress from the court should Frontier fail to
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`respond.
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`For the reasons stated above, the Court DENIES Movants’ motion to compel.
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`V. CONCLUSION
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`IT IS SO ORDERED.
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`Dated: February 7, 2024
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`THOMAS S. HIXSON
`United States Magistrate Judge
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