## Facts

- Record companies sued multiple unknown “Doe” defendants, identified only by IP addresses, alleging unauthorized peer-to-peer (P2P) sharing of copyrighted sound recordings.
- Plaintiffs claimed the Does used P2P software to download and make recordings available in shared folders accessible to other users.
- Plaintiffs asserted infringement of the exclusive rights of reproduction and distribution under 17 U.S.C. § 106(1) and § 106(3).
- To learn the Does’ identities, plaintiffs sought expedited discovery to serve Rule 45 subpoenas on internet service providers (ISPs) for subscriber identifying information tied to observed IP addresses.
- Doe defendants and/or ISPs objected, disputing whether “making available” without proof of actual downloads states a distribution claim and arguing for limits based on anonymity, privacy, and subpoena burdens.

## Issues

1. Whether “making available” copyrighted works on a P2P network, without direct proof of completed downloads, states a legally cognizable claim for infringement of the distribution right under 17 U.S.C. § 106(3).
2. What showing and balancing framework governs subpoenas seeking to identify anonymous internet users accused of copyright infringement.
3. Whether the requested ISP subpoenas should be allowed, modified, or quashed based on procedural propriety and fairness considerations (notice, burden, and limits on use).

## Decision

- The court held that § 106(3) distribution requires actual dissemination of copies or phonorecords; mere availability, standing alone, is not automatically distribution.
- The court concluded that in the P2P context, allegations and evidence that files were shared on a functioning network can support a plausible inference of actual dissemination sufficient at the early-discovery stage.
- The court found plaintiffs made an adequate prima facie showing of infringement to justify limited discovery to identify defendants.
- The court granted leave to serve Rule 45 subpoenas on ISPs, subject to conditions protecting subscribers and limiting use of the information.
- The court denied efforts to quash subpoenas categorically, while requiring safeguards such as notice and an opportunity to contest before disclosure.

## Legal Principles

- The Copyright Act’s distribution right under 17 U.S.C. § 106(3) generally requires actual dissemination; availability alone does not necessarily satisfy the statutory text.
- In P2P cases, actual dissemination may be proven through circumstantial evidence and reasonable inferences drawn from observed sharing behavior on an operational file-sharing network.
- Courts may authorize early third-party discovery to identify anonymous defendants when the plaintiff makes a concrete prima facie showing of a viable claim and the requested disclosure is narrowly targeted to identification.
- The need to enforce copyrights can outweigh anonymity and privacy interests in alleged unlawful file-sharing, particularly when disclosure is limited and procedural protections are imposed.
- Protective measures—subscriber notice, time to move to quash, limits on disclosure and use, and consideration of ISP burdens—are appropriate to reduce risk of misidentification and unfair settlement pressure.

## Conclusion

The court permitted record companies to subpoena ISPs for subscriber identities tied to IP addresses in a P2P infringement suit, while clarifying that § 106(3) distribution requires actual dissemination but may be inferred from circumstantial evidence in functioning P2P systems, and while imposing notice and privacy safeguards to control unmasking of anonymous users.


London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008)