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Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`CIVIL ACTION
`
`NO. 11-7248
`
`:
`:
`
`::
`
`:
`
`RAW FILMS, LTD.
`v.
`JOHN DOES 1-15
`
`MEMORANDUM
`
`March 23, 2012
`McLaughlin, J.
`The plaintiff filed this suit on November 21, 2011,
`alleging that each of fifteen Doe defendants infringed the
`copyright in its motion picture by reproducing and distributing
`it over the Internet using a peer-to-peer file-sharing protocol
`called BitTorrent. The Doe defendants are identified solely by
`internet protocol (“IP”) addresses corresponding to the Internet
`connections alleged to have been used to infringe the plaintiff’s
`copyright. The Court granted an earlier motion by the plaintiff
`for leave to file subpoenas on the Internet Service Providers
`(“ISP”) servicing the IP addresses identified in the complaint to
`help determine the identity of the Doe defendants. No Doe
`defendant to date has been identified by the plaintiff or served
`with the complaint. Two of the Doe defendants, made aware of the
`subpoenas by their ISPs, have moved to quash those subpoenas and
`sever the case as to all other Doe defendants. Because the
`joinder of the fifteen Doe defendants is proper and quashing the
`subpoenas issued would be inappropriate at this stage of the
`litigation, the Court will deny the defendants’ motions.
`
`

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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 2 of 21
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`I.
`
`Complaint
`The plaintiff claims that the Doe defendants, each
`identified only by an IP address, willfully copied, reproduced,
`redistributed, performed, and displayed its motion picture,
`“Bareback Street Gang” (the “Work”) by means of the file-sharing
`protocol known as BitTorrent, in violation of federal copyright
`law, 17 U.S.C. § 106(1) et seq. Compl. ¶¶ 44-49.
`
`A.
`
`BitTorrent
`According to the plaintiff, the BitTorrent protocol
`facilitates file-sharing by permitting multiple users to download
`and upload the same file simultaneously. An initial “seeder”
`begins the process by using a BitTorrent client program to break
`the file intended for sharing (“original file”) into identically
`sized “pieces,” each of which has a unique alphanumeric hash
`code, and creating a “torrent,” which records those hash codes
`and permits other client programs to identify, download, and
`reassemble the pieces into the original file. Id. ¶¶ 13-21.
`When other users, known as “peers,” download the
`torrent file, the BitTorrent protocol signals that those peers
`are seeking to download the original file, and the seeder begins
`to distribute pieces to those users. Once a peer has downloaded
`a piece, it serves as a source of that piece to other peers
`possessing the torrent and seeking to download the original file.
`When a peer has downloaded all of the pieces, the client program
`
`-2-
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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 3 of 21
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`continues to distribute the file like the initial seeder. In
`this way, the initial seeder and peers serve to share and
`distribute the original file in an activity known as a “swarm.”
`Id. ¶¶ 28-31.
`
`B.
`
`Activity of Does 1-15
`Each of the Doe defendants is alleged to have
`participated in the same “swarm” sharing and distributing the
`plaintiff’s Work. Id. ¶ 32. The plaintiff used forensic
`software to track and identify BitTorrent activity involving a
`specific copy of the Work that was identified by its own “Unique
`Hash Number.” The investigation identified fifteen IP addresses,
`corresponding to the Doe defendants here, that participated in
`the same swarm by transmitting a piece of this version of the
`Work using the BitTorrent protocol. Each IP address connected to
`a server established by the plaintiff’s investigator and
`transmitted a piece of the same copy of a file constituting the
`plaintiff’s Work between July and October 2011. Id. ¶¶ 35-40,
`Ex. A.
`
`By participating in the same swarm, the defendants are
`each alleged to have directly infringed the plaintiff’s copyright
`in the Work and to have “induced, caused[,] or materially
`contributed to the infringing conduct” of the other defendants.
`Id. ¶¶ 48, 54.
`
`-3-
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`

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`II. Procedural History
`After the plaintiff filed suit but before identifying
`any Doe defendants, it moved for leave to serve subpoenas on
`Cavalier Telephone, Comcast Cable, and Verizon Internet Services,
`the ISPs that service the fifteen IP addresses the plaintiff
`alleges were used to infringe its copyright. The subpoenas
`commanded each ISP served to provide the plaintiff with the “true
`name, address, telephone number, e-mail address and Media Access
`Control address of the Defendant to whom the ISP assigned an IP
`address” identified in Exhibit A to the motion (and the
`complaint). The Court granted that motion in part but denied the
`plaintiff’s request to rule in advance on objections to those
`subpoenas. (ECF No. 4).
`n February 10, 2012, a Motion to Quash or Modify the
`Subpoena was filed by one Doe defendant (identifying him or
`herself by the e-mail address johndoe07248@yahoo.com), requesting
`that the Court sever the remaining defendants from the case under
`Federal Rule of Civil Procedure 21. (ECF No. 5). The plaintiff
`opposed that motion on February 24, 2012, arguing that the
`requirements for permissive joinder had been met and that
`severance would impair its ability to enforce its rights.
`
`1 O
`
` The subpoena authorized by the Court directs ISPs that are
`1
`“cable operators” as defined by federal statute to notify its
`subscribers of the subpoena. Pl.’s Proposed Order ¶ 4 (ECF No.
`3) (citing 47 U.S.C. § 551(c)(2)(B)).
`-4-
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`

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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 5 of 21
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`On February 28, 2012, another Doe defendant (identified
`by the email address johndoeedpa1234@yahoo.com), apparently using
`an IP address serviced by Verizon Internet Services, filed a
`motion with the Court. (ECF No. 7). That motion seeks severance
`of the remaining Doe defendants, the quashing of the subpoena
`served on his ISP, and/or the issuance of a protective order
`staying all discovery in the case until his or her interests can
`be heard. The plaintiff opposed that motion on March 13, 2012.
`
`III. Discussion
`The Court finds that the allegations of the complaint
`make joinder appropriate at this early stage of litigation
`because the plaintiff asserts a right to relief against all Doe
`defendants that appears, given the technology involved, to arise
`out of the same series of transactions or occurrences and because
`common questions of law or fact seem to be raised with respect to
`all Doe defendants by virtue of the use of BitTorrent to transmit
`the same copy of the plaintiff’s Work. Further, the Court finds
`that (a) the information sought in the subpoenas is relevant to
`the plaintiff’s claims; and (b) under the circumstances, the
`plaintiff’s right to pursue its claims of infringement by means
`of discovering subscriber information outweighs the moving
`defendant’s asserted rights to remain anonymous in connection
`with the alleged infringing activity. As a result, the Court
`will deny the moving defendants’ motions to quash or modify the
`
`-5-
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`

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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 6 of 21
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`subpoenas.
`A.
`
`Joinder
`“Persons . . . may be joined in one action as
`defendants if: (A) any right to relief is asserted against them
`jointly, severally, or in the alternative with respect to or
`arising out of the same transaction, occurrence, or series of
`transactions or occurrences; and (B) any question of law or fact
`common to all defendants will arise in the action.” Fed. R. Civ.
`P. 20(a)(2). Where misjoinder occurs, “[o]n motion or on its
`own, the court may at any time, on just terms, add or drop a
`party. The court may also sever any claim against a party.”
`Fed. R. Civ. P. 21.
`Although the United States Court of Appeals for the
`Third Circuit has not directly interpreted Rule 20(a), it has
`held that events comprising the same transaction or occurrence
`bear a “logical relationship to one another” and feature “the
`same factual issues [or] the same factual and legal issues.”
`Transamerica Occidental Life Ins. Co. v. Aviation Office of Am.,
`Inc., 292 F.3d 384, 390 (3d Cir. 2002) (interpreting the
`relationship of compulsory counterclaims under Rule 13, which
`must arise out of the same transaction or occurrence).
`The general policy of the rules regarding joinder is
`“toward entertaining the broadest possible scope of action
`consistent with fairness to the parties,” and joinder “is
`
`-6-
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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 7 of 21
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`strongly encouraged.” United Mine Workers v. Gibbs, 383 U.S.
`715, 724 (1966); see also Hagan v. Rogers, 570 F.3d 146, 152 (3d
`Cir. 2009) (quoting Gibbs). The purpose of Rule 20(a) is “to
`promote trial convenience” and prevent a multiplicity of
`lawsuits. However, severance of parties where joinder is not
`required is committed to the court’s discretion if it finds that
`the objectives of the rule are not fostered, or that joinder
`could “result in prejudice, expense or delay.” 7 Charles Alan
`Wright, et al., Federal Practice & Procedure § 1652 (3d ed.
`2001).
`
`Here, the plaintiff argues that joinder of the Doe
`defendants in a single action is appropriate because “the claims
`against all defendants are logically related and Plaintiff is
`seeking joint and several liability,” and that the defendants, as
`members of the same BitTorrent swarm, participated in the same
`series of transactions or occurrences. No defendant has appeared
`in this matter, as no defendant has been served with the
`complaint. However, based on the plaintiff’s characterizations
`of the nature of the BitTorrent technology and the allegations
`against each Doe defendant, the Court cannot accept the moving
`Does’ arguments that a finding of misjoinder is appropriate at
`this stage. As a result, the Court will not sever the
`proceedings as to each defendant at this stage. The Court may
`review the propriety of joinder later in the proceedings, once
`
`-7-
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`

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`the defendants are served and appear. By that time, a variety of
`defenses or other arguments as to why joinder is inappropriate,
`may be raised by the defendants.
`The plaintiff alleges that it retained a forensic
`investigator, who determined that each of the fifteen Doe
`defendants copied a piece of the same copy of the Work as
`identified by a particular cryptographic hash value, and that
`each of the defendants’ computers connected to the investigator’s
`server and transmitted at least a piece of the Work. Compl.
`¶¶ 35, 37-39. By using BitTorrent to upload or download the same
`file, the Doe defendants are part of the same “swarm.” This is
`so even though each defendant’s activity occurred during
`different times over a seventy-four day period. Three pairs of
`Doe defendants are alleged to have participated in the swarm on
`the same day, although no act of transmittal is alleged to have
`occurred within fourteen hours of another. Compl. Ex. A.
`Based on the plaintiff’s allegations regarding the
`nature of BitTorrent, the pieces of the Work copied by each
`defendant may have been transmitted by or subsequently sent to
`other defendants, albeit indirectly, because “recipient
`peers . . . automatically begin delivering the piece they just
`received to other peers in the same swarm.” Id. ¶ 33. Even if
`no Doe defendant directly transmitted a piece of the Work to
`another Doe defendant, the Court is satisfied that at this stage
`
`-8-
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`

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`of the litigation the claims against each Doe defendant appear to
`arise out of the same series of transactions or occurrences,
`namely, the transmission of pieces of the same copy of the Work
`to the same investigative server.
`The claims against each defendant are logically related
`because they will feature largely duplicative proof regarding the
`nature of BitTorrent, the plaintiff’s ownership interest in the
`copyright for the Work, and the forensic investigation conducted
`by the plaintiff. These common questions of fact are likely to
`arise along with the legal standards for direct and contributory
`copyright infringement liability. The joining of the fifteen
`defendants that have these elements in common will, at this
`point, prevent a multiplicity of lawsuits. Thus, the
`requirements of Rule 20(a)(2) are met, and its purposes
`furthered.
`
`Additionally, at this stage of litigation, joinder will
`not result in prejudice to any defendant or result in needless
`delay. Indeed, severance of the action as requested by the two
`moving Doe defendants would require the filing of separate
`actions and the issuance of new subpoenas on the internet service
`providers serving the IP addresses in this case in order to
`identify each defendant. Neither of these steps would “secure
`the just, speedy, and inexpensive determination” of the action.
`Fed. R. Civ. P. 1. No defendant will be prejudiced by joinder at
`
`-9-
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`

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`this stage, as none has been served in the matter or required to
`respond to the complaint. Instead, the defendants may benefit
`from joinder by permitting them to obtain the same discovery from
`the plaintiff or allowing them to see any defenses raised by
`other Doe defendants. See Call of the Wild Movie, LLC v. Does 1-
`1062, 770 F. Supp. 2d 332, 344 (D.D.C. 2011) (citing London-Sire
`Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass.
`2008)). The defendants may challenge the appropriateness of
`joinder later in the proceedings.
`Courts faced with allegations of copyright infringement
`brought against multiple unnamed defendants based on the use of
`BitTorrent have split on whether joinder is appropriate. Compare
`Hard Drive Prods., Inc. v. Does 1-55, No. 11-2798, 2011 WL
`4889094, at *5 (N.D. Ill. Oct. 12, 2011) (joinder appropriate);
`Donkeyball Movie, LLC v. Does 1-171, 810 F. Supp. 2d 20, 27-28
`(D.D.C. 2011) (same) with Hard Drive Prods. Inc. v. Does 1-30,
`No. 11-345, 2011 WL 4915551, at *4 (E.D. Va. Oct. 17, 2011)
`(joinder inappropriate); Hard Drive Prods., Inc. v. Does 1-188,
`809 F. Supp. 2d 1150, 1156-64 (N.D. Cal. 2011) (same).
`Courts that have permitted joinder appear to have taken
`the same approach as this Court by finding it appropriate as an
`initial matter and permitting any defendant, once named and
`served, to challenge the appropriateness of joinder later in the
`case. See, e.g., K-Beech Inc. v. Does 1-57, No. 11-358, 2011 WL
`
`-10-
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`

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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 11 of 21
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`5597303 (M.D. Fla. Nov. 1, 2011); Call of the Wild, 770 F. Supp.
`2d at 344; Donkeyball Movie, 810 F. Supp. 2d at 28. This is
`consistent with the Rules, which grant the district court power
`to drop parties and sever claims “at any time, on just terms.”
`Fed. R. Civ. P. 21.
`Other courts have found severance appropriate where a
`plaintiff made similar allegations to those in this case. See,
`e.g., On the Cheap, LLC v. Does 1-5011, No. 10-4472, 2011 WL
`4018258, at *2-*3 (N.D. Cal. Sept. 6, 2011). On the Cheap had
`numerous factual characteristics that distinguish it from the
`present case. In addition to featuring over five thousand Doe
`2
`defendants, which created a “logistical nightmare,” many were
`located out of the district and several defendants had already
`appeared and raised a variety of defenses. Here, no defendant
`has appeared or even been identified pursuant to the subpoenas
`
` Similarly, many of the other district court opinions cited
`2
`in support of the defendants’ requests for severance are based on
`old technology, see LaFace Records, LLC v. Does 1-38, No. 07-298,
`2008 WL 544992 (E.D.N.C. Feb. 27, 2008); alleged violations of
`multiple copyrighted works rather than a single work, see BMG
`Music v. Does 1-203 No. 04-650, 2004 WL 953888, at *1 (E.D. Pa.
`Apr. 2, 2004)); or involved defendants that had seemingly been
`joined “arbitrarily,” see Twentieth Century Fox Film Corp. v.
`Does 1-12, No. 04-4862, 2004 WL 3241669, at *1 (N.D. Cal. Nov.
`16, 2004). Indeed, district courts ruling on the propriety of
`“swarm joinder” have found the specificity of the factual
`allegations brought to weigh heavily on the outcome of the Rule
`20(a) analysis. See, e.g., Patrick Collins, Inc. v. Does 1-2590,
`No. 11-2766, 2011 WL 4407172, at *5 (N.D. Cal. Sept. 22, 2011)
`(collecting cases and finding results “highly dependent on the
`information the plaintiff presented”).
`-11-
`
`

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`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 12 of 21
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`served on the defendants’ ISPs.
`One moving defendant suggests that the variety of
`defenses that could be raised by the Doe defendants renders
`joinder inappropriate because it will not foster judicial economy
`or promote the efficient resolution of the claims in this case.
`Def. Mot. 5 (ECF No. 5) (citing BMG Music v. Does 1-203, No. 04-
`650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)). However, no
`defenses have been raised to date in this case, and indeed,
`consolidating early discovery for the purpose of determining the
`scope of claims and defenses will foster judicial economy.
`Should that process reveal disparate defenses as to each party,
`the Court would consider such a fact relevant on a later review
`of joinder’s propriety.
`The Rules grant the Court authority to revisit the
`issue of misjoinder at a later point in the case, either by
`motion or sua sponte. With this procedural protection in mind,
`the Court will deny the motions to sever the defendants without
`prejudice to their ability to raise the issue of misjoinder at a
`later time.
`
`B.
`
`Motions to Quash
`One moving defendant also requests that the subpoenas
`served on the ISPs in this case be quashed, challenging the
`relevance of the information sought by the subpoena and claiming
`
`-12-
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`

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`a First Amendment interest in remaining anonymous. The Court
`will deny this request.
`The moving Doe objects to the subpoena served on his or
`her ISP because (a) it may not directly identify the infringing
`party but instead an innocent third party, and thus falls outside
`the scope of permissible discovery; and (b) he or she claims a
`privacy interest in the records sought. Def. Mot. 14-17. A
`court must quash a subpoena under certain circumstances,
`including when it subjects a person to undue burden. A court may
`quash or modify a subpoena if it requires disclosure of “a trade
`secret or other confidential research, development, or commercial
`information” or requires a nonparty to “incur substantial
`expense.” It may modify a subpoena if the serving party “shows a
`substantial need for the testimony or material that cannot
`otherwise be met without undue hardship.” Fed. R. Civ. P.
`45(c)(3). Neither of the moving Doe’s arguments raises valid
`grounds for quashing the subpoena served on Verizon.
`Proceeding with discovery to obtain the identity of Doe
`defendants so that they may be served is proper and within the
`scope of permissible discovery. The plaintiff moved for leave to
`serve discovery prior to a Rule 26(f) conference in order to do
`so. Pl.’s Mot. 4 (ECF No. 3). Discovery for the purpose of
`identifying Doe defendants is permissible. See, e.g., Blakeslee
`v. Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009). The
`
`-13-
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`

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`Court found good cause for ordering that discovery, see Fed. R.
`Civ. P. 26(b)(1), because the plaintiff showed that a subpoena
`seeking the subscriber information associated with the allegedly
`infringing IP addresses would be the only way for the plaintiff
`to identify the proper defendants in this case and proceed with
`its claims against them. See Declaration of Tobias Fieser ¶ 9,
`3
`23, Pl.’s Mot. Ex. The information sought is thus highly
`relevant to the plaintiff’s claims.
`The moving Doe also argues that the subpoena must be
`quashed because disclosure of his or her identity is violative of
`a First Amendment right to engage in anonymous online
`communication. Def. Mot. 17. The Constitution protects the
`right to engage in anonymous communication, and that protection
`extends to the Internet. See Reno v. ACLU, 521 U.S. 844, 870
`
` The Court acknowledges that Verizon’s compliance with the
`3
`subpoena may not directly reveal the identity of an infringer.
`Indeed, the subscriber information Verizon discloses will only
`reveal the account holder’s information, and it may be that a
`third party used that subscriber’s IP address to commit the
`infringement alleged in this case. See, e.g., BMG Music v. Does
`1-203, No. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
`(acknowledging this limitation on ISP-level subpoenas).
`Moreover, the Rules permit parties to obtain discovery of “the
`identity and location of persons who know of any discoverable
`matter.” Fed. R. Civ. P. 26(b)(1). One moving Doe argues that
`the individual whose identity is revealed by the subpoena may not
`be the infringer because of “numerous issues, from open wireless
`networks being illegally invaded, IP address spoofing[, and]
`human and collection errors.” Mot. 21. These are not grounds on
`which to quash a subpoena otherwise demonstrated to be proper.
`The moving Doe may raise these and any other nonfrivolous
`defenses in the course of litigating the case.
`-14-
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`

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`(1997). The First Amendment is implicated by civil subpoenas
`seeking the identify of anonymous individuals. NAACP v. Alabama
`ex rel. Patterson, 357 U.S. 449, 462 (1958). However, anonymous
`speech is not entitled to absolute protection, particularly if
`the speech consists of copyright infringement. Harper & Row
`Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56, 569
`(1985); see also In re Capital Cities/ABC, Inc., 918 F.2d 140,
`143-44 (11th Cir. 1990) (“[T]he first amendment is not a license
`to trammel on legally recognized rights in intellectual
`property.”) (quoting Dallas Cowboys Cheerleaders, Inc. v.
`Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)).
`The U.S. Court of Appeals for the Third Circuit has not
`articulated a standard for balancing the need for discovery
`against the right to anonymous speech. Courts around the country
`have applied standards that vary according to the nature of the
`protected speech and the showing required to overcome that
`protection. See In re Anonymous Online Speakers, 661 F.3d 1168,
`1174-76 (9th Cir. 2011) (noting that courts have required
`showings ranging from a “good faith standard” to one
`demonstrating the plaintiff’s ability “to survive a hypothetical
`motion for summary judgment”). 4
`
` The most exacting standard appears to have been applied by
`4
`the Delaware Supreme Court in the context of a defamation case.
`See Doe v. Cahill, 884 A.2d 451 (Del. 2005). The court required
`the plaintiff to “submit sufficient evidence to establish a prima
`facie case for each essential element” of the claim of defamation
`-15-
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`The Second Circuit is the only federal appellate court
`to have adopted a test balancing the right to obtain relevant
`discovery to pursue a claim of copyright infringement against the
`constitutional privilege to engage in anonymous speech online.
`See Arista Records, LLC v. Doe 3, 604 F.3d 110, 114 (2d Cir.
`2010). The Second Circuit’s test is derived from a 2004
`5
`district court opinion that laid out a five-factor test for
`balancing intellectual property rights against First Amendment
`anonymity interests. See Sony Music Entertainment Inc. v. Does
`1-40, 326 F. Supp. 2d 556, 564-67 (S.D.N.Y. 2004) (adopting the
`test after a review of the considerations that had been applied
`by district courts to date).6
`
`before the court would permit discovery of the alleged defamer’s
`identity. Id. at 467. The Court finds application of such a
`standard inappropriate in the present context because Cahill
`involved a different type of claim and, more importantly, a
`different kind of speech. The plaintiff in Cahill was a city
`councilman whose performance in office had been criticized on an
`Internet blog. Thus Cahill presented concerns over chilling
`political speech, which is entitled to the highest level of
`protection under the First Amendment. See McIntyre v. Ohio
`Elections Comm’n, 514 U.S. 334, 342 (1995) (describing the
`lengthy history of courts safeguarding the right to publish
`political speech anonymously).
` As the Ninth Circuit noted, “the paucity of appellate
`5
`precedent is not surprising because discovery disputes are not
`generally appealable on an interlocutory basis and mandamus
`review is very limited.” In re Anonymous Online Speakers, 661
`F.3d at 1175.
` The test has since been applied by district courts sitting
`6
`in the D.C., First, Third, Fourth, Sixth, Seventh, Ninth, and
`Tenth Circuits. See Art of Living Foundation v. Does, No. 10-
`5022, 2011 WL 3501830, at *3 (N.D. Cal. Aug. 10, 2011); First
`-16-
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`In Sony Music, the court, faced with alleged
`infringement of musical copyrights, evaluated a Doe defendant’s
`motion to quash a subpoena served on the defendant’s ISP that
`sought to uncover her identity so that she could be served with
`process. Among other grounds, the Doe defendant argued that the
`First Amendment protected her right to engage in online file-
`sharing anonymously. The court recognized the protection
`afforded to the potentially expressive practice of file-sharing
`(by choosing a collection files to upload and download). The
`court also acknowledged the limited protection the Constitution
`affords to speech constituting copyright infringement and the
`need for that protection to give way when a civil subpoena,
`issued in connection with claim of copyright infringement, seeks
`information necessary to advance that claim. Id. at 562.
`The test set forth by the Sony Music court analyzes the
`following five factors to determine whether the need for
`disclosure outweighs the right to anonymity where the speech
`alleged is copyright infringement: (1) a prima facie claim of
`infringement; (2) the specificity of the information sought from
`
`Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 248-49 (N.D. Ill.
`2011); Call of the Wild, 770 F. Supp. 2d at 341; Warner Bros.
`Records, Inc. v. Doe, No. 08-116, 2008 WL 5111884, at *7
`(E.D.N.C. Sept. 26, 2008); Fonovisa, Inc. v. Does 1-9, No. 07-
`1515, 2008 WL 919701, at *9 (W.D. Pa. Apr. 3, 2008); Interscope
`Records v. Does 1-14, 558 F. Supp. 2d 1176, 1178 (D. Kan. 2008);
`London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 163 (D.
`Mass. 2008); LaFace Records, LLC v. Does 1-5, No. 07-187, 2007 WL
`2867351, at *2 (W.D. Mich. Sept. 27, 2007).
`-17-
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`
`the ISP; (3) a lack of alternative means of obtaining that
`information; (4) a “central need” for the information in order to
`bring the claim; and (5) the expectation of privacy held by the
`objecting party. Id. at 564-65. Finding that the information
`sought by the plaintiff’s subpoena was necessary to advance its
`claim, the court denied the motion to quash. Id. at 567.
`The Court concludes that such a test strikes the
`appropriate balance between the limited protection afforded to
`speech that constitutes copyright infringement and the need for
`the plaintiff to serve a defendant with process in order to
`advance non-frivolous claims of infringement. As discussed
`above, the third and fourth factors of the Sony Music test weigh
`against quashing the subpoena because the plaintiff has shown
`that obtaining the subscriber information possessed by the ISPs
`is the only reasonable means of discovering the identity of the
`subscribers whose IP addresses were used to commit the alleged
`infringement here.
`Additionally, the complaint makes a prima facie claim
`of copyright infringement, which requires “(1) ownership of a
`valid copyright, and (2) copying of constituent elements of the
`work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv.
`Co., Inc., 499 U.S. 340, 361 (1991). The plaintiff has alleged
`that it owns the copyright in “Bareback Street Gang” and that the
`defendants, through use of BitTorrent, connected to the
`
`-18-
`
`

`
`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 19 of 21
`
`plaintiff’s investigative server and copied elements of the Work.
`The first Sony Music factor thus weighs against quashing the
`subpoena.
`
`The subpoena is specific enough to give rise to a
`reasonable likelihood that information facilitating service upon
`proper defendants will be disclosed if the ISPs comply. The
`subpoena here seeks the name, address, telephone number, e-mail
`address and “Media Access Control” address (which identifies the
`specific equipment using the IP address) of the subscriber to
`whom the served ISP assigned the specific IP addresses at the
`dates and times of the alleged infringement identified in Exhibit
`A to the complaint. Again, although the provision of this
`information may not directly identify the proper defendants, it
`is sufficiently tailored to lead to the identification of those
`individuals. Thus, the second Sony Music factor weighs against
`quashing the subpoena.
`Finally, courts analyzing the expectation of privacy
`possessed by internet users engaging in online file-sharing have
`concluded that such expectation is at most minimal because those
`individuals have already voluntarily given up certain information
`by engaging in that behavior. A Doe defendant who has allegedly
`used the internet to unlawfully download and disseminate
`copyrighted material does not have a significant expectation of
`privacy. Accord In re Verizon Internet Servs., Inc., 257 F.
`
`-19-
`
`

`
`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 20 of 21
`
`Supp. 2d 244, 267 (D.D.C. 2003) (engaging in peer-to-peer file-
`sharing is akin to “essentially opening up the computer to the
`world”). Even if the moving Does retained a reasonable
`expectation of privacy in their subscriber information, that
`interest is substantially outweighed by the need to disclose it
`so that the plaintiff may proceed with bringing what appear to be
`non-frivolous claims of copyright infringement that cannot be
`advanced by other means. Thus, the Court will deny the motions
`to quash the subpoena. This denial is without prejudice to the
`right of any served ISP or other Doe defendant to raise a timely
`objection to a subpoena served pursuant to the Court’s order of
`December 28, 2011.
`Finally, the second moving Doe defendant asks the Court
`to enter a protective order that will stay discovery in this case
`“until such time as [his or her] interests . . . can be heard and
`considered,” Mot. 25, but the Court does not understand the basis
`for this request. The Rules permit the Court to enter a
`protective order “for good cause,” in order to “protect a party
`or person from annoyance, embarrassment, oppression, or undue
`burden or expense.” Fed. R. Civ. P. 26(c)(1). The moving
`defendant has not put forth the basis for the entry of such a
`protective order. To the extent that Doe has argued that his or
`her interests have not yet been heard as to the appropriateness
`of the subpoena, those arguments have been addressed above in the
`
`-20-
`
`

`
`Case 2:11-cv-07248-MAM Document 12 Filed 03/26/12 Page 21 of 21
`
`discussion of the motion to quash.
`Otherwise, a party may not proceed to litigate in
`federal court anonymously except in rare circumstances. Fed. R.
`Civ. P. 10(a); see also Doe v. Megless, 654 F.3d 404, 408 (3d
`Cir. 2011) (finding that “exceptional cases” may merit permitting
`a party to proceed anonymously upon a showing of a reasonable
`fear of severe harm). The second moving Doe has not alleged that
`he or she fears “severe harm” resulting from the requirement to
`appear if he or she wishes to defend against the claims the
`plaintiff has brought. The Court will not enter a protective
`order at this time.
`
`An appropriate order shall issue.
`
`-21-

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