OPINION AND ORDER
On Sеptember 19, 2008, plaintiffs Loud Records LLC, Sony BMG Music Entertainment, UMG Recordings, Inc., Interscope Records and Motown Record Company LP filed this civil action for injunctive and monetary relief, contending that defendant Frank Minervini electronically downloaded and distributed copyrighted music licensed to plaintiffs without their permission in violation of Title 17 U.S.C. Now before the court is
As an initial matter, I note that because defendant filed his motion long after he answered the complaint, I cannot consider it under Rule 12(b)(6), which is directed to motions made before the filing of an answer. Therefore, I will proceed accoi’ding to Rule 12(h)(2) and construe defendant’s motion as a motion for judgment on the pleadings under Rule 12(c).
Ong ex rel. Ong v. Sears, Roebuck & Company,
As an initial matter, I note that plaintiffs have attached several documents to their opposition brief, including several court decisions, a copy of a discovery order and subpoena issuеd by this court in
Arista Records LLC v. Doe 9,
case no. 07-cv-641-bbc (W.D.Wis.), and a copy of the response to that subpoena. Typically in ruling on a Rule 12(c) motion, “the court considers the pleadings alone, which consist of the complaint, the answer, аnd any written instruments attached as exhibits.”
Housing Authority Risk Retention Group, Inc. v. Chicago Housing Authority,
I draw the following facts from plaintiffs complaint and the court records submitted in conjunction with Case No. 07-cv-641-bbc.
ALLEGATIONS OF FACT
Plaintiffs are the exclusive owners оr licensees of certain copyrighted sound recordings, including the seven sound recordings listed in Exhibit A to the complaint. As required by 17 U.S.C. § 401, plaintiffs have placed copyright notices on the album cover for each of the sound recordings identified in Exhibit A. The copyright notices appear on all published copies of the sound recordings, which were widely available and accessible to defendant.
Most unlawful distribution of copyrighted sound reсordings over the internet occurs via “peer-to-peer” (or P2P) file copying networks or online media distribution systems. P2P networks are computer systems or processes that allow internet users
P2P network users can be identified by their internet protocol (“IP”) addresses. Each computer or network device (such as a router) that connects to a P2P network must have a unique IP address within the internet to deliver files from one computer or network device to another. Two computers cannot effectively function if they are connected to the internet with the same IP address at the same time. The unique IP address of the computer offering the filеs for distribution can be captured by another user during a search or a file transfer.
Plaintiffs identified an individual using the P2P network “AresWarez” at IP address 143.236.171.182 on March 27, 2007 at 7:33:04 EDT to distribute 622 audio files over the internet. On November 26, 2007, plaintiffs issued a subpoena to the University of Wisconsin in conjunction with Arista Records LLC v. Doe 9, case no. 07-cv-641-bbc (W.D.Wis.). They sought the names and contact information of individuals using various IP addresses at specified dates and times, including 143.236.171.182 on March 27, 2007, at 7:33:04 EDT. On January 4, 2008, the University of Wisconsin resрonded to the subpoena, identifying defendant as the likely user of that IP address at the specified date and time. Exhibit A to the complaint identifies the date and time of capture and a list of copyrighted recordings that defendant has downloaded or distributed to the public without plaintiffs’ permission. In addition to the sound recordings listed in Exhibit A, defendant has downloaded or distributed other sound recordings without plaintiffs’ permission. Plaintiffs filed this lawsuit against defendant on Sеptember 19, 2008.
OPINION
A motion for judgment under Rule 12(c) challenges the sufficiency of the pleadings in the complaint and is reviewed under the same standard as a motion to dismiss under Rule 12(b).
Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,
Defendant asserts that plaintiffs have failed to meet the minimum pleading requirements under Fed. R. Civ. P. 8 and
Bell Atlantic Corporation v. Twombly,
The Court of Appeals for the Seventh Circuit has held that complaints for copyright infringement are sufficient when they allege present copyright ownership by the plaintiff, registration in compliance with the applicable statute and infringement by the defendant.
Mid America Title Co. v. Kirk,
Defendant next argues that plaintiffs are not entitled to relief on the facts as alleged in the complaint. Although his argument is difficult to understand, defendant seems to be asserting that plaintiffs obtained his specifiс identify by illegally accessing his private student education records in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and his private computer files in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. However, as plaintiff рoints out, defendant relies almost entirely on unsupported explanations that IP addresses do not identify a particular account or computer being used and that the IP address at issue in this case identifies the user as “Smith Hall” at the University of Wisconsin-Stevens Point. Without more, defendant cannot show that plaintiffs have failed to state a claim upon which relief may be granted.
Plaintiffs allege in their complaint how IP addresses are used to identify P2P network users and that they identified defendant as the individual using IP address 143.236.171.182 on March 27, 2007 at 7:33:04 EDT to distribute 622 audio files over the internet. Defendant has failed to adduce any evidence showing that this is untrue or impossible. In fact, court records from Arista Records LLC show that plaintiffs obtained defendant’s identity in response to a subpoena served on the University of Wisconsin. Although defendant contends that this information was provided in violation of FERPA, this court previously rejected this same argumеnt in Arista Records LLC:
Under § 1232g, a university may release so-called “directory information,” which consists of name, address, telephone listing, date and place of birth, § 1232q(5)(B), and other items of information not at issue in this case. It may also releasе fuller details in response to a judicial order or lawfully issued subpoena, so long as the student and parents (if the student is a dependent) are notified of all such orders or subpoenas in advance of the university’s comрlianee. § 1232q(2)(B). Plaintiffs’ subpoena to the University of Wisconsin is proper under either exception to the general rule prohibiting the release of student information. The subpoena seeks only defendant’s true name, current and permanent addresses and telephone numbers, email addresses and medical access control addresses, all of which are items an educational institution may disclose if it has given general notice thаt it will do so. Defendant has not suggested that the university did not give such notice.
Ord. den. mtn. to quash subpoena, case no. 07-cv-641-bbc, dkt. # 23 at 3.
Defendant also contends that plaintiffs obtained his identity by accessing his private computer files or asking the university to access them without authorization, in violation of the Computer Fraud and Abuse Act. Among other things, the CFAA prohibits the intentional access of a protected computer without authorization. 18 U.S.C. § 1030;
Patrick Patterson Custom Homes, Inc. v. Bach,
Accordingly, I will deny defendant’s motion to dismiss, which I have construed as a motion for judgment on the pleadings, because it is possible for plaintiffs to prove facts sufficient to support their claim for relief.
ORDER
IT IS ORDERED that defendant Frank Minervini’s motion to dismiss, dkt. # 13, is DENIED.