First Time Videos, LLC v. Does 1-500
276 F.R.D. 241
N.D. Ill.2011Background
- FTV filed suit against 500 unnamed Doe Defendants alleging copyright infringement via BitTorrent (Complaint and docket).
- Court denied most of the defendants’ motions to quash subpoenas, and denied most motions to dismiss and for fees; severance motions were denied without prejudice.
- FTV alleges BitTorrent distribution of eight copyrighted works and that IP addresses can be traced to individuals through ISPs and subscriber records.
- FTV seeks to identify Doe Defendants by subpoenaing their ISPs for names, addresses, and related contact data to effect service.
- BitTorrent is described as a decentralized peer-to-peer protocol with trackers and swarms, enabling distribution among many users rather than central servers.
- The Court discusses the privacy and First Amendment implications of revealing anonymous readers/shareholders, applying a five-factor framework and related caselaw to decide whether identifying information may be disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subpoenas seeking Doe Defendants’ identifying information should be quashed under Rule 45 | FTV argues information is needed to identify and serve defendants | Doe Defendants claim privacy/First Amendment protections and undue burden | No; subpoenas not quashed on privacy or First Amendment grounds; information not privileged; five-factor analysis favors disclosure |
| Whether the subpoenas impose an undue burden on Doe Defendants | Compliance is necessary to enable service and progression of the case | Subpoenas create undue burden on unnamed defendants | No; undue burden argument rejected; defendants not yet involved in suit; burden on ISPs rather than defendants |
| Whether general denials of liability justify quashing subpoenas | Denials do not affect subpoena validity or need for identity info | Denials show lack of liability and thus moot discovery | No; general denials are not a basis to quash subpoenas; discovery remains necessary to bring defendants into suit |
| Whether joinder/severance is appropriate at this stage | Permissive joinder is appropriate to efficiently resolve common issues | Joinder may be improper and severance warranted | Joinder denied without prejudice; severance urged for later stages but premature now |
Key Cases Cited
- In re Fitch, Inc., 330 F.3d 104 (2d Cir. 2003) (journalistic/privilege considerations in subpoenas; confidentiality not absolute)
- Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004) (HIPAA privilege does not bar subpoena in privacy balancing)
- Achte/Neunte Boll Kino Beteiligungs GmbH & Co. v. Does 1-4, 736 F.Supp.2d 212 (D.D.C. 2010) (subscriber information not reasonably private; anonymity not absolute)
- Sony Music Entm’t Corp. v. Does 1-5,000, 2011 WL 1807438 (D.D.C. 2011) (five-factor test for disclosure of subpoenaed ISP information; disclosure favored)
- Arista Records v. Does 1-19, 551 F.Supp.2d 1 (D.D.C. 2008) (anonymous file-sharing defendants have limited privacy rights; can disclose)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (S. Ct. 1991) (copyright ownership and originality essential elements for infringement)
- Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (S. Ct. 1985) (copyright subject matter not protected by First Amendment exclusion)