Breaking Glass Pictures v. Does 1-99
Filing
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Memorandum Opinion and Order denying non party BUckeye Cablesystem's Motion to quash subpoena (Related Doc # 10 ). Judge Donald C. Nugent(C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BREAKING GLASS PICTURES,
Plaintiff,
v.
DOES 1-99,
Defendants.
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CASE NO. 1:13 CV 802
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER
This matter is before the Court on the Motion to Quash Subpoena to Produce Documents
(Docket #10) filed by non-party Buckeye Cablesystem. This case, along with eight others,1 were
filed by Plaintiff, Breaking Glass Pictures, asserting copyright violations by the Doe Defendants
1
In Case Nos. 1:13 CV 803 and 1:13 CV 805, Magistrate Judge William H.
Baughman, Jr. recommended that Judge Lesley Wells consolidate all of the pending
Breaking Glass Pictures cases, Case Nos 1:13 CV 800; 1:13 CV 801; 1:13 CV 802; 1:13
CV 803; 1:13 CV 804; 1:13 CV 805; and 1:13 CV 808, as related cases. The Report and
Recommendations are pending.
Two of the original Breaking Glass Pictures cases filed by Plaintiff were
dismissed without prejudice by Judge James S. Gwin for failure to comply with the
Court’s order that the Doe Defendants be severed and that Plaintiff proceed with a single
Defendant. See Breaking Glass Pictures v. Does 1-84, Case No. 1:13 CV 806, and
Breaking Glass Pictures v. Does 1-19, Case No. 1:13CV 806. In Case No. 1:13 CV 804,
Magistrate Judge Greg White issued a Report and Recommendation recommending that
the reasoning of Judge Gwin be adopted. The Report and Recommendation is pending.
who are alleged to have “acted in a collective and interdependent manner via the Internet in the
unlawful reproduction and distribution of Plaintiff’s copyrighted motion picture, ‘6 Degrees of
Hell’ . . . by means of interactive ‘peer-to-peer’ . . . file transfer technology protocol called
BitTorrent.” Plaintiff alleges that the Doe Defendants in this case were part of a single “‘swarm’
in which numerous Defendants engaged in mass copyright infringement of Plaintiff‘s Motion
Picture.” See Complaint at Paragraphs 4 and 5.
In its Motion to Quash, Buckeye argues that it should not be required to produce the
names, addresses, email addresses, media control and other information corresponding to three of
the IP addresses purported to belong to Buckeye customers who are included as John Does in the
Complaint. Buckeye asserts that the subpoena issued by Plaintiff violates Fed. Rule Civ. P.
45(c)(3) by creating an undue burden on its customers, who it alleges have been improperly
joined as Defendants, and improperly seeks private information subject to a qualified privilege
afforded internet users. Buckeye argues that the subpoena violates the First Amendment rights of
its customers.
On July 26, 2013, Plaintiff filed its Memo Contra Buckeye Cablesystem’s Motion to
Quash Subpoena to Produce Documents. (Docket #11.) Plaintiff argues that the information
subpoenaed is neither privileged nor protected and that joinder of Defendants in this case is
appropriate.
On August 2, 2013, Buckeye filed a Reply Memorandum (Docket #12), reiterating the
arguments raised in its Motion to Quash and urging the Court to adopt the reasoning of Judges
Gwin and Carr in previous cases, requiring Plaintiff to sever the Doe Defendants and proceed
with a single Defendant. In the alternative, if the Court denies Plaintiff’s Motion to Quash,
Buckeye asks that the Court order Buckeye to provide notice to its customers and allow its
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customers 30 days to object to the subpoena prior to releasing the information.
Discussion
Pursuant to Fed. R. Civ. Pro. 45(c)(3), a court must quash or modify a subpoena that:
(I)
(ii)
(iii)
(iv)
fails to allow a reasonable time to comply;
requires a person who is neither a party nor a party’s officer to travel more than
100 miles from where that person resides, is employed, or regularly transacts
business . . .
requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or
subjects a person to undue burden.
The Court finds no basis upon which to quash the subpoena at issue. A person’s identity
is not privileged or protected in the face of accusations of copyright infringement. Although
individuals may have a First Amendment right to engage in anonymous speech on the internet,
these protections do not extend to shield the identity of persons involved in (or accused of
involvement in) copyright violations. Hard Drive Prods. v. Doe, 2012 U.S. Dist. LEXIS 82927,
*9-10 (N.D. Ill. June 14, 2012) (citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2nd Cir.
2010)).
Accordingly, the right of anonymity does not create a protection or privilege sufficient to
satisfy the requirements for a motion to quash when raised to prevent a plaintiff from accessing
the protections afforded to it by law. Hard Drive Productions, 2012 U.S. Dist. LEXIS 82927, at
*9-10; First Time Videos, LLC v. Doe, 276 F.R.D. 241, 250 (N.D. Ill. 2011); Voltage Pictures,
LLC v. Does 1-5,000, 818 F. Supp.2d 28, 36 (D.D.C. 2011). Further, because internet
subscribers have necessarily conveyed their identity and other identifying information to and ISP
provider in order to establish an account, they do not have a “reasonable expectation of privacy in
their subscriber information.” Hard Drive Productions, 2012 U.S. Dist. LEXIS 82927, at *9-10
(quoting First Time Video, 276 F.R.D. at 249); see also Boy Racer, Inc. v. Does 1-34, No.
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11-23035, 2012 U.S. Dist. LEXIS 60862, at *4 (S.D. Fla. May 1, 2012)).
Further, release of the names imposes no undue burden upon Buckeye and any argument
as to the issue of improper joinder cannot properly be raised by non-party Buckeye.2
Conclusion
For all of the above reasons, the motion to quash is DENIED.
IT IS SO ORDERED.
s/Donald C. Nugent
Donald C. Nugent
United States District Judge
DATED: September 19, 2013
2
Buckeye may notify its customers of the subpoena and/or the release of their
identities pursuant to said subpoena should it so choose.
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