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