Facts
- First Time Videos, LLC (FTV) alleged it owned copyrights in adult videos and photographs distributed online.
- FTV alleged 500 unknown defendants used the BitTorrent protocol to download and distribute FTV’s copyrighted works without authorization.
- FTV identified alleged infringing activity by IP address and associated timestamps, then traced the IP addresses to specific internet service providers (ISPs).
- Because FTV had only IP addresses, it sought early discovery subpoenas requiring ISPs to disclose subscriber names and contact information tied to the IP addresses.
- Before any Doe defendant was identified, named, or served, a group of putative Does moved to quash the subpoenas, dismiss the action, sever defendants, and recover fees and costs.
Issues
- Whether ISP subpoenas seeking subscriber identifying information tied to IP addresses should be quashed based on privacy, First Amendment, privilege, undue burden, personal jurisdiction, or joinder objections.
- Whether dismissal or severance motions were properly considered before any Doe defendant was identified and named.
- Whether putative Doe movants were entitled to attorney’s fees and costs.
Decision
- Denied the motions to quash the ISP subpoenas.
- Denied the motions to dismiss.
- Denied the motions for attorney’s fees and costs.
- Denied the motions to sever without prejudice to renewal after further factual development.
Legal Principles
- Early discovery to identify anonymous defendants may be allowed in copyright cases where the complaint states a plausible infringement claim and the requested subscriber information is necessary and otherwise unavailable.
- Subscriber name and address information maintained by ISPs as business records is generally not privileged, and subscribers typically lack a reasonable expectation of privacy in that identifying information provided for account and billing purposes.
- A putative defendant’s general denial of liability does not justify quashing subpoenas seeking identification information; discovery is the mechanism for testing the claims.
- Undue-burden objections to ISP subpoenas are weakened where the burden of compliance falls primarily on the ISPs and the ISPs do not seek relief on that basis.
- Personal jurisdiction, misjoinder, and severance objections may be premature before defendants are identified and formally made parties; such defenses may be raised after identification and service.
- Asserted First Amendment or privacy concerns do not bar subpoenas limited to basic identifying information (as opposed to the content of communications) when the information is needed to pursue alleged copyright infringement.
- Attorney’s fees and costs are generally unwarranted where movants do not obtain substantive relief.
Conclusion
The court permitted FTV to use ISP subpoenas to obtain subscriber identities associated with IP addresses allegedly used for BitTorrent infringement, rejected premature jurisdiction and joinder challenges at the pre-identification stage, and denied fees, costs, and dismissal while leaving open the possibility of later severance.