v. Reddit, Inc.

Filing 26

ORDER by Judge Thomas S. Hixson re 16 Motion to Compel, 17 Motion for Joinder. (tshlc1, COURT STAFF) (Filed on 2/7/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE SUBPOENA TO: 8 REDDIT, INC. Case No. 24-mc-80005-TSH ORDER DENYING MOTION TO COMPEL 9 10 Re: Dkt. No. 1 United States District Court Northern District of California 11 12 13 I. INTRODUCTION Voltage Holdings, LLC and Screen Media Ventures, LLC move this Court to grant an 14 15 order compelling Reddit, Inc. to produce documents in response to a subpoena issued in the 16 bankruptcy matter In re: Frontier Commc’ns Corp., Case No. 20-22476-MG, in the Bankruptcy 17 Court for the Southern District of New York. ECF No. 1.1 Reddit has filed an opposition (ECF 18 No. 20) and Movants filed a reply (ECF No. 21). The undersigned finds this matter suitable for 19 disposition without oral argument and VACATES the February 15, 2024 hearing. See Civ. L.R. 20 7-1(b). Having considered the parties’ positions, relevant legal authority, and the record in this 21 case, the Court DENYING the motion for the following reasons. 22 II. BACKGROUND 23 On April 14, 2020, Frontier Communications Corporation filed a voluntary petition for 24 Chapter 11 bankruptcy. Bankr. Case No. 20-22476-rdd, Bankr. Case ECF No. 1. Movants are 25 movie companies that filed proofs of claim against Frontier for copyright infringement of their 26 27 28 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. 1 movies. On November 6, 2023, counsel for Frontier and Movants submitted a joint report 2 addressing whether the bankruptcy court should authorize the issuance of subpoenas that require 3 Frontier to disclose subscribers who allegedly infringed Movants’ copyrights. Bank. Case ECF 4 No. 2227. On December 1 the bankruptcy court ruled that Movants had established good cause to 5 require Frontier to disclose the alleged infringing subscribers’ information. Bank. Case ECF No. 6 2233. 7 8 Within those communities, called “subreddits,” users gather to discuss shared interests. Id. Users 9 generally participate on the platform pseudonymously, and Reddit does not require that they use or 10 11 United States District Court Northern District of California Reddit is a community of online communities. Schottlaender Decl. ¶ 2, ECF No. 20-2. provide Reddit with their legal names or addresses. Id. On Dec. 17, 2023, Movants served a subpoena to Reddit requesting “IP address log 12 information from 1/1/2017 to present for users: ‘Gibson125T’; ‘Sankerin’; ‘Old_Package540’, 13 ‘Arceist_Justin’; ‘ZeroHart’; ‘Cyb3rR3b0rn’”. Mot., Ex. 1. The subpoena seeks login 14 information for certain Reddit users “who boasted of using the service of the Internet service 15 provider Frontier Communications for piracy on Reddit’s platform.” Mot. at 2-3. After Reddit 16 served objections, id., Ex. 2, Movants filed the present motion on January 9, 2024, 17 18 III. LEGAL STANDARD Federal Rule of Civil Procedure 45 governs discovery of non-parties. A party serving a 19 subpoena may, “on notice to the commanded person, . . . move the court for the district where 20 compliance is required for an order compelling production.” Fed. R. Civ. P. 45(d)(2)(B)(i). The 21 scope of allowable discovery under Rule 45 is the same as the scope of discovery permitted under 22 Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., 2016 WL 3162218, at 23 *2 (N.D. Cal. June 7, 2016) (citing Fed. R. Civ. P. 45 advisory comm’s note (1970); Fed. R. Civ. 24 P. 34(a)). Rule 26 permits discovery “regarding any non-privileged matter that is relevant to any 25 party’s claim or defense and proportional to the needs of the case considering the importance of 26 the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant 27 information, the parties’ resources, the importance of the discovery in resolving the issues, and 28 whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. 2 1 United States District Court Northern District of California 2 Civ. P. 26(b)(1). The Court must limit the frequency or extent of discovery if it determines that: “(i) the 3 discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other 4 source that is more convenient, less burdensome, or less expensive; (ii) the party seeking 5 discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) 6 the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 7 26(b)(2)(C). Rule 45 further provides that “the court for the district where compliance is required 8 must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires 9 a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure 10 of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person 11 to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). 12 IV. DISCUSSION 13 Movants divide the Reddit user comments into two categories: “(i) Comments that 14 establish that Frontier has not reasonably implemented a policy for terminating repeat infringers 15 sufficient for a safe harbor affirmative defense as required by 17 U.S.C. § 512; and (ii) Comments 16 that establish that the ability to freely pirate without consequence was a draw to becoming a 17 subscriber of Frontier and/or subscribers are motivated to use Frontier’s service for pirating 18 content without consequence.” Mot. at 6. In support of their request, Movants provide the 19 following Reddit posts: 20 21 22 23 24 25 26 27 28 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…” *** In a Reddit discussion forum “Frontierfios”, Reddit user “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?” *** In the Reddit “Piracy” forum, Reddit user "Arceist_Justin" admitted, “Been using Frontier DSL for years. Despite the sh*tty internet, they 3 1 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.” 2 *** 3 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. 4 5 *** 6 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]”. 7 8 United States District Court Northern District of California 9 Id. at 6-8. Movants argue the information they seek is relevant and proportional to the needs of 10 the case because “they support Movants’ assertion that the ability to pirate content efficiently 11 without any consequences is a draw for becoming a Frontier subscriber (an element of vicarious 12 liability) and that Frontier does not have an effective policy for terminating repeat infringers 13 (rebutting Frontier’s purported DMCA safe harbor).” Id. at 9. Reddit argues the Court should deny the motion because it is an unmasking subpoena, 14 15 targeting a potential witness rather than a potential defendant, and is therefore subjected to First 16 Amendment scrutiny. Opp’n at 4. Reddit argues the evidence Movants seek can instead be 17 obtained from both the defendant internet service provider (“ISP”) itself and from a number of ISP 18 subscribers that Movants know to have engaged in copyright infringement, already in Movants’ 19 possession. Id. at 2. 20 A. Legal Standard 21 The First Amendment protects the rights of individuals to speak anonymously. 22 Watchtower Bible & Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 166–67 23 (2002); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42 (1995). “An author’s decision 24 to remain anonymous, like other decisions concerning omissions or additions to the content of a 25 publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre, 26 514 U.S. at 352. The Ninth Circuit recognizes that the decision to remain anonymous extends to 27 anonymous speech made on the internet. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 28 (9th Cir. 2011) (“[O]nline speech stands on the same footing as other speech – there is ‘no basis 4 1 for qualifying the level of First Amendment scrutiny that should be applied’ to online speech.”) 2 (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)). “When adjudicating 3 discovery requests that would unmask an anonymous speaker, then, courts must consider the First 4 Amendment implications of disclosure—just as they would when adjudicating any other discovery 5 request that risks infringing First Amendment rights.” In re DMCA § 512(h) Subpoena to Twitter, 6 Inc., 608 F. Supp. 3d 868, 876 (N.D. Cal. 2022). United States District Court Northern District of California 7 The Ninth Circuit has recognized that internet platforms can assert the First Amendment 8 rights of their users, based on the close relationship between the platform and its users and the 9 “genuine obstacles” users face in asserting their rights to anonymity. In re Grand Jury Subpoena, 10 875 F.3d 1179, 1183 n.2 (9th Cir. 2017). When third-party providers such as Reddit receive 11 subpoenas to produce identifying information of posters of anonymous speech, courts apply the 12 appropriate First Amendment standard to ensure that a person’s right to anonymous speech is 13 protected. Music Grp. Macao Com. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal. 14 2015); In re Anonymous Online Speakers, 661 F.3d at 1172–77. In Anonymous Online Speakers, 15 the Ninth Circuit reviewed the developing tests in the area of anonymous online speech and left it 16 to the discretion of district courts to choose the proper standard in a given case, based on the 17 nature of the speech at issue. Id. at 1174–77; see, e.g., Art of Living Found. v. Does 1-10, 2011 18 WL 5444622, at *5 (N.D. Cal. Nov. 9, 2011) (“[I]n choosing the proper standard to apply, the 19 district court should focus on the nature of the [defendant’s] speech[.]”) (cleaned up); SI03, Inc. v. 20 Bodybuilding.com, LLC, 441 F. App’x 431, 431–32 (9th Cir. 2011) (same). “For example, . . . 21 commercial speech should be afforded less protection than political, religious, or literary 22 speech[.]” In re Anonymous Online Speakers, 661 F.3d at 1177. 23 In “evaluating the First Amendment rights of anonymous Internet users in the context of a 24 third-party civil subpoena,” district courts have followed the approach taken in Doe v. 25 2TheMart.com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001). Rich v. Butowsky, 2020 WL 5910069, 26 at *3–4 (N.D. Cal. Oct. 6, 2020); In re Anonymous Online Speakers, 661 F.3d at 1176 (describing 27 the 2TheMart.com test). Under that approach, disclosure of anonymous users’ identities is 28 appropriate only “in the exceptional case where the compelling need for the discovery sought 5 1 outweighs the First Amendment rights of the anonymous speaker.” 2TheMart.com, 140 F. Supp. 2 2d at 1095. Courts consider four factors: whether “(1) the subpoena seeking the information was 3 issued in good faith and not for any improper purpose, (2) the information sought relates to a core 4 claim or defense, (3) the identifying information is directly and materially relevant to that claim or 5 defense, and (4) information sufficient to establish or to disprove that claim or defense is 6 unavailable from any other source.” Id.; Rich, 2020 WL 5910069, at *3–4. This is a “high[ ] 7 standard,” In re Anonymous Online Speakers, 661 F.3d at 1176, and the factors are weighed 8 “based on the circumstances of a given case,” Rich, 2020 WL 5910069, at *4; Sines v. Kessler, 9 2018 WL 3730434, at *13 n.16 (N.D. Cal. Aug. 6, 2018). 10 United States District Court Northern District of California 11 B. Analysis A higher standard for unmasking a non-party witness exists than for unmasking a potential 12 defendant because–unlike the need to identify a potential defendant–litigation can often continue 13 without interfering with a non-party witness’s First Amendment right to anonymity. 2TheMart, 14 140 F. Supp. 2d at 1095. Consequently, other courts in this District have recognized that a 15 dispositive “question here is whether the information is available from ‘any’ other source,” which 16 is “a high standard.” See In re Reddit, Inc., __ F. Supp. 3d __, 2023 WL 3163455 (N.D. Cal. Apr. 17 28, 2023) (“Reddit I”); In re Reddit, Inc., 023 WL 4849434 (N.D. Cal. July 29, 2023) (“Reddit 18 II”); compare Rich, 2020 WL 5910069, at *5 (subpoena enforced because the anonymous account 19 was a singularly “essential witness” for the litigants). 20 In Reddit I, the copyright holders, including Voltage Holdings, sought to unmask seven 21 Reddit users who had generally posted about internet service providers and about copyright 22 infringement notices they received from those providers. 2023 WL 3163455, at *2. Those 23 copyright holders suggested that unmasking the Reddit users would help the copyright holders 24 establish that a defendant ISP in the underlying litigation did not adequately implement a repeat 25 infringer policy for purposes of seeking a Digital Millennium Copyright Act (“DMCA”) safe 26 harbor. Id. The court analyzed the copyright owners’ motion under the First Amendment 27 standard articulated in 2TheMart.com and, applying that standard, denied the copyright holders’ 28 motion to compel Reddit to produce identifying information, recognizing that under the 6 1 circumstances, it was implausible to believe that the Reddit users served as an “irreplaceable 2 source” of evidence in the copyright holders’ underlying litigation. Id. at *4. The court held the 3 copyright holders could not meet the 2theMart standard because: 4 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. 5 6 7 8 United States District Court Northern District of California 9 Id. 10 Two months later, many of the same copyright holders (with a few added) filed Reddit II. 11 Both Voltage Holdings and Screen Media Ventures were movants in Reddit II. The second case 12 presented nearly identical facts to Reddit I but involved different Reddit users and a different 13 defendant ISP. Reddit II, 2023 WL 4849434, at *1. Notably, in Reddit II, the copyright holders 14 had requested and received from the defendant ISP a list of that ISP’s top infringing IP addresses. 15 Id. The court again applied 2TheMart and analyzed why the copyright holders were seeking to 16 unmask Reddit users, recognizing that those users would hold “at best weak evidence about [the 17 ISP’s] insufficient policy regarding repeat infringers or its appeal to pirating subscribers.” Id. at 18 *4. As the court pointed out, the copyright owners’ ability to subpoena “even a subset of” the 19 individuals identified by the defendant ISP “would [] yield information at least equivalent to, if 20 not better than, information from the six Reddit subscribers.” Id. On those bases, the Court again 21 denied the copyright holders’ motion to compel Reddit to produce identifying information. Id. 22 The present case is similar, in that Movants seek to unmask the IP addresses of six Reddit 23 users who discussed receiving DMCA notices from Frontier, based on the theory that these Reddit 24 users have made comments that “support Movants’ assertion that the ability to pirate content 25 efficiently without any consequences is a draw for becoming a Frontier subscriber [] and that 26 Frontier does not have an effective policy for terminating repeat infringers (rebutting Frontier’s 27 purported DMCA safe harbor).” Mot. at 9. However, this case is also similar in that there is 28 information available from another source, as Movants themselves note the underlying bankruptcy 7 1 court adjudicating the copyright litigation has already ruled they can obtain identifying 2 information from Frontier for IP addresses known to have pirated using Frontier’s network. Id. at 3 4. United States District Court Northern District of California 4 Movants suggest this case is distinguishable from Reddit I and Reddit II because the 5 present motion does not seek to compel “anonymous users’ identities” but is instead “limited to 6 requesting the Reddit users’ IP address logs.” Mot. at 9. While the Court is unaware of any cases 7 in the Ninth Circuit in which a court has declined to apply a First Amendment unmasking standard 8 for IP addresses, other courts have recognized that IP addresses are essential to unmasking 9 because an “IP address cannot be made up in the same way that a poster may provide a false name 10 and address.” Obi Pharma, Inc. v. Does 1-20, 2017 WL 1520085, at *5 (S.D. Cal. Apr. 27, 2017). 11 For this reason, the Court finds no reason to believe provision of an IP address is not unmasking 12 subject to First Amendment scrutiny. 13 Movants also cannot show that the information they seek here is unavailable from other 14 sources. As in Reddit I and II, Movants justify their request by arguing that they seek evidence: (i) 15 that “the ability to freely pirate” drew customers to Frontier; and (ii) that Frontier failed to 16 implement a repeat infringer policy. Mot. at 6. But evidence on those issues is available and 17 obtainable outside of these six targeted Reddit users such that it is not “essential” and fails 18 2TheMart. For example, in Reddit II, the movants admitted they were in possession of a list of IP 19 addresses that had most frequently infringed copyrights using that defendant ISP’s networks. The 20 court recognized that admission to be fatal under 2TheMart; where the movants already have the 21 “top pirating IP addresses . . . it is not obvious why subpoenaing even a subset of those addresses 22 would not yield information at least equivalent to, if not better than, information from the six 23 Reddit subscribers.” Reddit II, 2023 WL 4849434, at *4. Here, Movants again admit that they 24 already have “pirating [IP] addresses.” Mot. at 4; see also Bank. Case ECF No. 2233 at 2 (Dec. 1, 25 2023) (“Movie Company Claimants have identified the IP addresses of the alleged infringers.”). 26 And Frontier has indicated it will provide Movants with identifying information for those IP 27 addresses upon receipt of a subpoena. Bank. Case ECF No. 2255 (“[W]e advised Mr. Culpepper 28 that in the absence of issuance of subpoenas (which require a further order of the Court as set forth 8 United States District Court Northern District of California 1 in your opinion concerning this issue) Frontier cannot provide the identification information of its 2 subscribers without violating the Cable Act.”). If Movants sought further information, they need 3 only subpoena the ISP for the subscriber information associated with that IP address, as the ISP 4 does not share Reddit’s interest in protecting the anonymity of that user. See, e.g., In re Grand 5 Jury Subpoena, 875 F.3d at 1183 n.2 (recognizing a platform’s third-party standing to assert the 6 First Amendment rights of its users because the platform has a “sufficiently close relationship to 7 its users”) (citing McCollum v. Cal. Dep’t. of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011)).2 8 Movants argue that even if they obtain subscriber information for those infringer IP 9 addresses, “this information would not provide them with documented evidence that the ability to 10 pirate freely was a draw to using Frontier’s service or that Frontier failed to reasonably implement 11 a policy for terminating repeat infringers.” Mot. at 12. But Reddit has stated it does not have any 12 such “documented evidence” in its possession either —it only has IP addresses. Opp’n at 8. And 13 to the extent Movants are suggesting that the Reddit posts themselves are “documented evidence,” 14 Movants need not unmask the Reddit users to admit that evidence. See, e.g., Mot. at 11-12 15 (conceding that the Reddit posts themselves “refer to Defendant’s lack of a policy for terminating 16 repeat infringers and/or failure to reasonably implement such a policy”); see also 2TheMart, 140 17 F. Supp. 2d at 1097 (“The messages are available for use at trial, and TMRT can factually support 18 its defense without encroaching on the First Amendment rights of the Internet users.”); La Force 19 v. GoSmith, Inc., 2017 WL 9938681, at *3 (N.D. Cal. Dec. 12, 2017) (describing how a litigant 20 can authenticate and admit printouts of webpages as evidence). Finally, Movants argue that because the Reddit users were “boasting of criminal conduct 21 22 23 24 25 26 27 28 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 United States District Court Northern District of California 1 violating [copyright law],” the 2TheMart standard should not apply because “copyright law 2 includes built-in First Amendment accommodations such as the fair use defense.” Mot. at. 11. 3 Movants cite In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882–83 (N.D. Cal. 4 2020), a case in which the court held that it need not conduct a First Amendment analysis at the 5 unmasking stage because the to-be defendant in a copyright infringement action would have an 6 opportunity to present their First Amendment defense by asserting fair use. However, this 7 argument has been rejected twice, both in Reddit I and Reddit II, because of the distinction that the 8 anonymous users here are not going to be defendants in any infringement actions. See Mot. at 9- 9 10 (“Movants are not seeking to retaliate economically or officially against these Reddit users. 10 Rather, Movants wish to use their comments as evidence . . . .”). “The fair use defense is available 11 only to those accused of copyright infringement, and the Reddit users at issue here are uninvolved 12 third parties.” Reddit I, 2023 WL 3163455, at *3 (citing In re DMCA Subpoena to Reddit, 441 F. 13 Supp. 3d at 882–83); see also Reddit II, 2023 WL 4849434, at *3 (declining to apply the lesser 14 “fair use” standard to a Reddit user because that user “is a witness, not a defendant. He thus does 15 [not] have available to him the built-in First Amendment accommodations of copyright law, such 16 as the fair use defense.”) (cleaned up). 17 In sum, the Court finds Movants cannot meet the 2TheMart standard because the evidence 18 they seek can be obtained from other sources, including from Frontier in the normal course of 19 discovery. While Movants note the discovery period in their underlying litigation ends in June 20 2024 (Mot. at 12), this still allows sufficient time for Movants to issue a subpoena to Frontier for 21 subscriber information and, if necessary, to seek redress from the court should Frontier fail to 22 respond. 23 V. CONCLUSION 24 For the reasons stated above, the Court DENIES Movants’ motion to compel. 25 IT IS SO ORDERED. 26 Dated: February 7, 2024 27 THOMAS S. HIXSON United States Magistrate Judge 28 10

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