337 F. Supp. 3d 246
W.D.N.Y.2018Background
- Strike 3 Holdings, an adult-film copyright owner, sued a John Doe identified only by IP address 69.204.6.161 for alleged BitTorrent downloading and distribution of its works.
- Plaintiff obtained ex parte leave to serve a Rule 45 subpoena on the defendant's ISP to learn the subscriber’s name and address; a Protective Order governed use of any disclosed information.
- The ISP notified the subscriber, who moved to quash the subpoena, vacate the Protective Order, and — alternatively — to proceed anonymously; Plaintiff opposed and sought more time to serve once identity is disclosed.
- The court treated the subpoena-authorizing order as interlocutory discovery under Rule 26(d)(1) and evaluated standing, undue burden, whether the subpoena would advance the claim, and other defenses raised by the subscriber.
- The court found the subscriber has standing based on a privacy/First Amendment interest, denied the motion to quash, limited public identification to "John Doe subscriber assigned IP address 69.204.6.161," and extended the service deadline to January 9, 2019.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to quash Rule 45 subpoena for ISP subscriber info | Subpoena is proper, narrowly tailored, necessary to identify and serve defendant | Disclosure infringes privacy/First Amendment; subpoena unduly burdensome; IP may not identify infringer | Denied — subscriber has standing but no undue burden; info is necessary to advance claim; subpoena allowed under Rule 45/26(d) |
| Motion to vacate Protective Order (Rule 60) | Protective Order was properly issued to permit discovery and limit use of disclosed info | Protective Order should be vacated because Complaint fails to state claim and order is interlocutory | Denied — Rule 60(b) inapplicable to interlocutory orders; Complaint adequately pleaded prima facie copyrights (registrations alleged) |
| Request to proceed anonymously in litigation | (Plaintiff) Agreed to pseudonymity but required subscriber identity for service | Subscriber sought heightened anonymity procedures (ex parte disclosure to court only) to avoid misuse | Granted in part — subscriber may be publicly identified only as "John Doe subscriber assigned IP address 69.204.6.161"; counsel for Plaintiff may receive identifying info under Protective Order |
| Motion for extension of time to serve (Rule 4(m)) | Plaintiff needs more time because identity unresolved pending ISP response and motion practice | N/A (defendant opposed disclosure) | Granted — good cause; service due by Jan 9, 2019 |
Key Cases Cited
- Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir.) (discusses factors for subpoena/quash where anonymity implicated)
- Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y.) (recognizes limited First Amendment privacy interest in P2P file sharing cases)
- Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182 (2d Cir.) (certificate of registration is prima facie evidence of valid copyright)
- Hamil Am. Inc. v. GFI, 193 F.3d 92 (2d Cir.) (burden on party challenging copyright validity)
- Recording Indus. Ass'n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir.) (DMCA subpoena scope and ISP-as-conduit analysis)
- In re Charter Commc'ns, Inc., Subpoena Enf't Matter, 393 F.3d 771 (8th Cir.) (limitations on using DMCA to subpoena ISPs)