Safety Point Productions LLC v. Does 1-57

Filing 26

MEMORANDUM AND ORDER re: 16 Appeal of Magistrate Judge Decision. Defendant Doe #16's objections [Doc. 16] to the magistrate judges pretrial order are hereby OVERRULED in their entirety. Signed by District Judge Thomas W Phillips on 4/05/2013. (KMK) Modified on 4/5/2013 (KMK): copy mailed

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

SAFETY POINT PRODUCTIONS, LLC,
Plaintiff,
v.
DOES 1-57,
Defendants.

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No. 3:12-CV-601
(Phillips/Guyton)

MEMORANDUM AND ORDER

In this copyright infringement action, plaintiff alleges that 57 individual Doe
defendants acted in concert to infringe plaintiff’s copyrighted motion picture “Puncture”.
The complaint alleges that each Doe defendant used an internet file sharing protocol called
BitTorrent to copy and reproduce the motion picture over the internet. Defendants’ actions
resulted in the unauthorized, viral dissemination of plaintiff’s motion picture, resulting in
copyright infringement of plaintiff’s motion picture. Plaintiff filed a motion for expedited
discovery contending that expedited discovery is necessary in order to determine the
identity of the holder of the IP addresses which it alleges are involved in the unlawful
distribution of the subject motion picture.

On December 19, 2012, the Honorable H. Bruce Guyton, United States
Magistrate Judge, entered a pretrial order allowing plaintiff to conduct limited, early

discovery in the form of subpoenaing ISPs to provide the names and contact information
of IP users identified in plaintiff’s complaint [Doc. 8]. This matter is presently before the
court on defendant Doe #16's objections to the magistrate judge’s order granting expedited
discovery [Doc. 16].

Magistrate Judge Guyton’s order was entered pursuant to 28 U.S.C. § 636(b).
Under 28 U.S.C. § 636(b), the court can reconsider the magistrate judge’s ruling if it is
“clearly erroneous” or “contrary to law.” Accordingly, the court has now undertaken a
review of the magistrate judge’s order. After doing so, the court concludes that Magistrate
Judge Guyton’s ruling is consistent with the Federal Rules of Evidence and the applicable
case law.

Doe #16 objects to the magistrate judge’s ruling stating that the issuance of
a subpoena to ISP’s is invalid because Doe #16 has not yet been served with a summons
in this case. Plaintiff responds that personal jurisdiction over Doe #16 is not required to
issue a subpoena to a non-party, the ISP. Plaintiff points out that the ISP has not
challenged the issued subpoena; therefore, plaintiff avers that personal jurisdiction over
Doe #16 is irrelevant to the validity of the subpoena.

The personal jurisdiction argument raised by Doe #16 was rejected by the
United States District Court for the Northern District of Illinois. The court found:
[S]uch personal jurisdiction arguments are premature because
the Putative Defendants have not been named parties to this
lawsuit. As such, the Putative Defendants are under no
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obligation either to produce information under subpoena or to
litigate in this jurisdiction.
. . . Such assertions, however, will be relevant once the
Putative Defendants are named as parties in this action, but
not before. . . .
First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 251 (N.D.Ill. 2011). The court
agrees with the analysis of the Illinois District Court and finds it applicable in this case.
Accordingly, the court finds Doe #16's assertions of lack of jurisdiction premature and
irrelevant to the motion for expedited discovery, and his objection is overruled.

In addition, Doe #16 objects to the discovery because requiring the release
of his ISP information is an invasion of his/her privacy. Again, this argument has been
rejected by the federal courts. A subpoena may be quashed or modified under Federal
Rule of Civil Procedure 45(c)(3) if compliance with the subpoena “requires disclosure of
privileged or other protected matter, if no exception or waiver applies.” Doe #16 maintains
that the subpoena to his ISP should be quashed because the subpoena requires disclosure
of his identity and address, information which Doe #16 contends is protected under a
constitutional right to privacy.

The court concludes that the identifying information

subpoenaed does not qualify for protection as “privileged.” The discovery at issue seeks
only the name and address of specified Doe defendants. The magistrate judge’s order
explicitly limited discovery to obtaining the name and address of the defendants. Such
minimal information is required to enable the plaintiff to serve summons and complaints
upon the defendants.

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The federal courts have consistently held that internet subscribers do not
have a reasonable expectation of privacy in their subscriber information – including their
name and address – as they have already conveyed such information to their ISPs. See
First Time Videos, 276 F.R.D. at 247; Voltage Pictures LLC v. Does 1-5,000, 818
F.Supp.2d 28, 36 (D.D.C. 2011); Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does
1-4,577, 736 F.Supp.2d 212, 216 (D.D.C. 2010); West Bay One Inc. v. Does 1-1,653, 270
F.R.D. 13, 16 (D.D.C. 2010); Sony Music Entm’t. Inc. v. Does 1-40, 326 F.Supp.2d 556,
567 (S.D.N.Y. 2004) (First Amendment right of alleged file-sharers to remain anonymous
“must give way to the plaintiffs’ right to use the judicial process to pursue what appear to
be meritorious copyright infringement claims); Elektra Entm’t Group Inc. v. Does 1-9, 2004
WL 2095581 at *4-5 (S.D.N.Y. Sept 8, 2004) (finding that First Amendment right to
anonymity is overridden by plaintiff’s right to protect copyright). Because Doe #16 has
already shared his/her subscriber information with the ISP in order to set up his/her internet
account, Doe #16 likewise has no reasonable expectation of privacy in the same
information now sought in the subpoena. The information is not privileged and Doe #16's
argument that it is privileged lacks merit. Accordingly, defendant Doe #16's objections
[Doc. 16] to the magistrate judge’s pretrial order are hereby OVERRULED in their entirety.

ENTER:
s/ Thomas W. Phillips
United States District Judge

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