United States District Court, S.D. New York
July 26, 2004.
SONY MUSIC ENTERTAINMENT INC. et al., Plaintiffs
DOES 1 40, Defendants.
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this case, plaintiffs seventeen record companies sued
forty unidentified "Doe" defendants for copyright infringement,
alleging that defendants illegally downloaded and distributed
plaintiffs' copyrighted or exclusively licensed songs from the
Internet, using a "peer to peer" file copying network. Plaintiffs
served a subpoena on non-party Internet service provider
Cablevision Systems Corporation ("Cablevision"), seeking to
obtain defendants' identities. Four defendants move to quash the
The motions present two First Amendment issues. First, is a
person who uses the Internet to download or distribute
copyrighted music without permission engaging in the exercise of
speech? Second, if so, is such a person's identity protected from
disclosure by the First Amendment? I conclude that a person who
uses the Internet to download or distribute copyrighted music
without permission is engaging in the exercise of speech, albeit to a limited extent only. I conclude further that such a person's
identity is not protected from disclosure by the First Amendment.
Accordingly, the motions to quash are denied.
STATEMENT OF THE CASE
Plaintiffs own the copyrights and exclusive licenses to the
various sound recordings at issue in this case. (Compl. ¶ 23).
Plaintiffs allege that each of the forty Doe defendants, without
plaintiffs' permission, used "Fast Track," an online media
distribution system or "peer to peer" ("P2P") file copying
network to download, distribute to the public, or make
available for distribution "hundreds or thousands" of copyrighted
sound recordings. (Id. ¶ 25, Exh. A; Whitehead Decl. I ¶ 6;
Whitehead Decl. II ¶ 4).*fn1 In their most popular form, P2P
networks are computer systems or processes that enable Internet
users to "(1) make files (including audio recordings) stored on a
computer available for copying by other users; (2) search for
files stored on other users' computers; and (3) transfer exact copies of files from one computer to another via the Internet."
(Whitehead Decl. I ¶ 7).
Plaintiffs were able to identify Cablevision as the Internet
service provider ("ISP") to which defendants subscribed, using a
publicly available database to trace the Internet Protocol ("IP")
address for each defendant. (Id. ¶¶ 12, 16). ISPs own or are
assigned certain blocks or ranges of IP addresses. (Id. ¶ 14 n.
1). An ISP assigns a particular IP address in its block or range
to a subscriber when that subscriber goes "online." (Id.). An
ISP can identify the computer from which the alleged infringement
occurred and the name and address of the subscriber controlling
the computer when it is provided with a user's IP address and the
date and time of the allegedly infringing activity. (Id. ¶ 14).
As a condition of providing its Internet service, Cablevision
requires its subscribers to agree to its "Terms of Service" under
which "[t]ransmission or distribution of any material in
violation of any applicable law or regulation is prohibited. This
includes, without limitation, material protected by copyright,
trademark, trade secret or other intellectual property right used
without proper authorization." (Cablevision Mem. 2 (citing
http://www.optimumonline.com/index. jhtml?pageType=aup)). The
Terms of Service also state that "Cablevision has the right . . .
to disclose any information as necessary to satisfy any law, regulation or other governmental
request." (Id. (citing
II. Prior Proceedings
On January 26, 2004, this Court issued an order granting
plaintiffs' ex parte application to serve a subpoena upon
non-party Cablevision to obtain the identity of each Doe
defendant by requesting the name, address, telephone number,
email address, and Media Access Control address for each
defendant. In support of their application for expedited
discovery, plaintiffs argued, inter alia, that good cause
existed because ISPs typically retain user activity logs for only
a limited period of time before erasing data. (Pl. Mem. 6;
Whitehead Decl. I ¶ 22).
On February 2, 2004, amici curiae Electronic Frontier
Foundation, Public Citizen, and the American Civil Liberties
Union ("amici") submitted a letter to the Court objecting to
plaintiffs' ex parte application for expedited discovery. The
objection came after the Court had already issued its January 26,
2004 Order. In their letter, amici argued that the requested
discovery violated the First Amendment, the case improperly
joined all defendants, and personal jurisdiction was lacking.
On February 3, 2004, the Court ordered that its January 26,
2004 Order remain in effect. The February 3, 2004 Order further
provided that, if Cablevision were served with a subpoena from
plaintiffs, Cablevision was to give its subscribers notice within five business days, and Cablevision or the Doe defendants
could move to quash the subpoena before the subpoena's return
date. (2/3/04 Order). Cablevision was instructed to preserve the
subpoenaed information in question pending resolution of any
timely filed motions to quash. (Id.). The Court further ordered
that issues raised by amici would be considered by the Court if
and when any subscriber, defendant, or Cablevision moved to quash
and the parties and non-party witnesses had been given an
opportunity to be heard. (Id.).
On February 3, 2004, Cablevision received by fax a subpoena
issued by plaintiffs' attorneys. (Kiefer Decl. ¶ 2). The subpoena
identified forty IP addresses and demanded that Cablevision
produce, by February 23, 2004, information identifying the
Cablevision subscribers who had used the indicated IP addresses
at the times specified in the subpoena. (Id.).
Cablevision sent notice to all affected subscribers. (Id. ¶
4). Cablevision's letter stated,
Unless we hear from you, or your attorney, in writing
by February 20, 2004 that you have filed the
appropriate papers with the U.S. District Court for
the Southern District of New York to have the
subpoena set aside, we will disclose your subscriber
information to the plaintiffs, as required by the
(2/12/04 Notice Letter from Cablevision to Subscriber; see also
Kiefer Decl. ¶ 4).
By letter dated February 19, 2004, attorney Kenneth J. Hanko
advised the Court that he represented one of the Doe defendants. (2/19/04 Hanko Letter to Court). Hanko stated that
his client joined the arguments set forth in the February 2, 2004
letter to the Court from the Electronic Frontier Foundation,
Public Citizen, and the American Civil Liberties Union. (Id.).
Hanko's letter also argued that plaintiffs "have not made a
sufficient factual showing to warrant discovery concerning the
unnamed defendants." (Id.).
On February 20, 2004, Cablevision received from Hanko a letter
stating that he represented one of Cablevision's subscribers and
that he "would expect that Cablevision will make every effort to
quash the subpoena or otherwise limit the scope of the requested
discovery so . . . as not to infringe on [his] client's privacy
rights." (Kiefer Decl. ¶ 5). According to Cablevision attorney
Alfred G. Kiefer, Jr., he called Hanko on February 20, 2004 and
informed Hanko that because he had not filed a motion to quash
the subpoena, Cablevision would have to comply with the subpoena.
(Id. ¶ 6).
On February 23, 2004, Cablevision complied with plaintiffs'
subpoena and provided relevant identifying information about
thirty-six defendants to plaintiffs. (Id. ¶ 7; see also
3/2/04 Plaintiffs' Letter to Court; 3/12/04 Plaintiffs' Letter to
Court).*fn2 According to Kiefer, Cablevision did so because
Hanko did not indicate to Cablevision that he had filed or
intended to file a motion to quash the subpoena and because Cablevision did not construe Hanko's letter to the Court as a
motion to quash. (Kiefer Decl. ¶ 7). According to Hanko, his
transmittal of the copy of his February 19, 2004 letter to the
Court, by which Hanko's client joined the arguments set forth by
amici in their February 2, 2004 letter to the Court, communicated
to Cablevision his client's objection to the subpoena. (3/12/04
Letter from Hanko to the Court).
This Court issued an Order on February 27, 2004, in which it
ruled that Hanko's February 19, 2004 letter to the Court would be
construed as a motion to quash the subpoena. The Court set a
briefing schedule, with a March 19, 2004 deadline for motions to
quash from other Doe defendants and amici curiae papers.
The Court subsequently received three letter requests to quash
the subpoena from or on behalf of other Doe defendants. (Letters
from Doe defendants to Court dated 3/12/04, 3/15/04, and
3/18/04). Two Doe defendants also sought extensions of time to
submit motions to quash. (Letters from Doe defendants to Court
dated 3/16/04 and 3/18/04).
On March 25, 2004, the Court issued an Order extending the
deadline for filing and service of motions to quash to April 8,
By letters dated April 7, 2004 and April 30, 2004, defendant
Jane Doe ("Jane Doe") stated that she was using her former
counsel Kenneth J. Hanko's February 19, 2004 letter to the Court
as her formal motion to quash, based on lack of a sufficient factual showing permitting discovery, her First
Amendment right to anonymity, and lack of personal jurisdiction.
(Letters from Jane Doe, c/o Cindy Cohn, Esq., Electronic Frontier
Foundation, to Court, dated 4/7/04 and 4/30/04).
In the meantime, from March 11, 2004 to April 13, 2004,
plaintiffs voluntarily dismissed this action as to Does 5, 9, 10,
12, 20, 34, and 40, pursuant to Fed.R.Civ.P. 41(a).
Thirty-three of the original forty Doe defendants remain.
Plaintiffs contend that the motions to quash the subpoena are
moot in light of Cablevision's compliance with the subpoena on
February 23, 2004. (Pl. Opp. 6-7; see also Plaintiffs' Letters
to Court dated 3/2/04 and 3/12/04). By the time this Court issued
its February 27, 2004 Order setting a March 19, 2004 deadline for
additional motions to quash the subpoena and amici curiae papers,
Cablevision had already provided the subpoenaed information to
Amici argue that the motions to quash are not moot because the
Court is empowered to compel the suppression or return of
evidence improperly obtained. (Am. Cur. Mem. 3). Amici contend
that the disclosure of the Doe defendants' identities violated
the Court's February 3, 2004 Order directing Cablevision to
preserve subpoenaed information pending resolution of any motions
to quash filed prior to the subpoena's return date. (Id. at
16). Accordingly, amici seek an order from the Court directing that the Doe defendants' identities not be used
for any purpose. (Id.).
Plaintiffs' mootness argument is rejected. First, at least one
"motion" to quash was timely lodged, as Hanko's letter of
February 19, 2004 was the equivalent of a motion to quash, and it
was submitted prior to the return date of the subpoena. Second,
even though Cablevision has already produced the information,
plaintiffs can be ordered to return the information and
prohibited from using it. Accordingly, the issues are not moot,
and I consider the issues on the merits.
II. The Merits
Pursuant to Fed.R.Civ.P. 45(c)(3)(A) (iii), a subpoena
shall be quashed if it "requires disclosure of privileged or
other protected matter and no exception or waiver applies."
Jane Doe moves to quash the subpoena based on (1) the
subpoena's violation of her First Amendment right to engage in
anonymous speech; (2) lack of personal jurisdiction; (3) improper
joinder of the Doe defendants; and (4) lack of a sufficient
factual showing to permit discovery. Jane Doe and amici argue,
accordingly, that the Court should order plaintiffs to return the
disclosed information to Cablevision.*fn3 Plaintiffs contest these arguments and maintain that they have
"good cause" for expedited discovery.
A. The First Amendment
Defendants' motions to quash raise two First Amendment issues:
(1) whether a person who uses the Internet to download or
distribute copyrighted music without permission is engaging in
the exercise of speech; and (2) if so, whether such a person's
identity is protected from disclosure by the First Amendment.
1. Applicable Law
a. First Amendment Protection for Anonymous Internet Speech
The Supreme Court has recognized that the First Amendment
protects anonymous speech. Buckley v. American Constitutional
Law Found., 525 U.S. 182, 200 (1999) (invalidating, on First
Amendment grounds, state statute requiring initiative petitioners
to wear identification badges). As the Court has held,
"[a]nonymity is a shield from the tyranny of the majority."
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995). In
McIntyre, the Court overturned an Ohio law that prohibited the
dissemination of campaign literature that did not list the name and address of the person issuing the
literature, holding that "[u]nder our Constitution, anonymous
pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and of dissent." Id.; see also
Talley v. California, 362 U.S. 60, 65 (1960) (invalidating
California statute prohibiting distribution of handbills without
name and address of preparer).
It is well-settled that the First Amendment's protection
extends to the Internet. Reno v. ACLU, 521 U.S. 844, 870
(1997); In re Verizon Internet Servs., Inc., 257 F. Supp.2d 244,
259 (D.D.C. 2003), rev'd on other grounds, Recording
Indus. Ass'n of America, Inc. v. Verizon Internet Servs., Inc.,
351 F.3d 1229 (D.C. Cir. 2003); Columbia Ins. Co. v.
Seescandy.Com, 185 F.R.D. 573, 578 (N.D. Cal. 1999); ACLU v.
Johnson, 4 F. Supp.2d 1029, 1033 (D.N.M. 1998), aff'd,
194 F.3d 1149 (10th Cir. 1999). Courts have recognized the Internet
as a valuable forum for robust exchange and debate. See Reno
v. ACLU, 521 U.S. at 870 ("Through the use of chat rooms, any
person with a phone line can become a town crier with a voice
that resonates farther than it could from any soapbox."); Doe v.
2TheMart.Com, Inc., 140 F. Supp.2d 1088, 1092 (W.D. Wash.
2001); Seescandy.Com, 185 F.R.D. at 578. The Internet is a
particularly effective forum for the dissemination of anonymous
speech. See, e.g., 2TheMart.Com, 140 F. Supp.2d at 1092,
1097 ("Internet anonymity facilitates the rich, diverse, and far
ranging exchange of ideas . . . [;] the constitutional rights of
Internet users, including the First Amendment right to speak anonymously, must be carefully
safeguarded."); United States v. Perez, 247 F. Supp.2d 459,
461 (S.D.N.Y. 2003) (noting the Internet's "vast and largely
anonymous distribution and communications network").
Anonymous speech, like speech from identifiable sources, does
not have absolute protection. The First Amendment, for example,
does not protect copyright infringement, and the Supreme Court,
accordingly, has rejected First Amendment challenges to copyright
infringement actions. See, e.g., Harper & Row Publishers, Inc.
v. Nation Enters., 471 U.S. 539, 555-56, 569 (1985); Universal
City Studios, Inc. v. Reimerdes, 82 F. Supp.2d 211, 220
(S.D.N.Y. 2000) (the "Supreme Court . . . has made it
unmistakably clear that the First Amendment does not shield
copyright infringement"). Parties may not use the First Amendment
to encroach upon the intellectual property rights of others.
See In re Capital Cities/ABC, Inc., 918 F.2d 140, 143 (11th
b. First Amendment Implications of Civil Subpoena Power
Against the backdrop of First Amendment protection for
anonymous speech, courts have held that civil subpoenas seeking
information regarding anonymous individuals raise First Amendment
concerns. For example, in NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 462 (1958), the Supreme Court held that a discovery
order requiring the NAACP to disclose its membership list
interfered with the First Amendment's freedom of assembly. Similarly, in NLRB v. Midland Daily News, 151 F.3d 472, 475
(6th Cir. 1998), the Sixth Circuit declined on First Amendment
grounds to enforce a subpoena duces tecum issued by the National
Labor Relations Board seeking to require a newspaper publisher to
disclose the identity of an anonymous advertiser. See also Los
Angeles Memorial Coliseum Comm'n v. Nat'l Football League,
89 F.R.D. 489, 494-95 (C.D. Cal. 1981) (granting motion to quash
civil subpoena seeking disclosure of confidential journalistic
sources); but see Lee v. U.S. Dep't of Justice, 287 F. Supp.2d 15,
24-25 (D.D.C. 2003) (denying motion to quash subpoena
duces tecum seeking journalists' confidential news sources in
light of plaintiff's need to obtain information to pursue Privacy
Act action against government).
Courts have addressed, on a number of recent occasions, motions
to quash subpoenas seeking identifying subscriber information
from ISPs. Some courts have required disclosure. For example, in
a case closely resembling this one, the district court in
Verizon, 257 F. Supp.2d at 267-68, 275, rev'd on other
grounds, Recording Indus. Ass'n of America, Inc. v. Verizon
Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003), denied an
ISP's motion to quash a subpoena served pursuant to the Digital
Millennium Copyright Act ("DMCA") seeking subscriber information
about P2P users who had allegedly engaged in copyright
infringement.*fn4 Similarly, in In re Subpoena Duces Tecum
to America Online, Inc., No. 40570, 2000 WL 1210372, at *1 (Va.
Cir. Ct. Jan. 31, 2000), rev'd on other grounds, America
Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377
(Va. 2001), the court denied a motion to quash a subpoena seeking
the identity of certain Doe defendants who had allegedly made
defamatory statements and disclosed confidential insider
information online. Other courts, in different circumstances,
have quashed subpoenas seeking information identifying ISP
subscribers. See, e.g., 2TheMart.Com, 140 F. Supp.2d at
1090, 1097-98 (granting motion to quash subpoena seeking
identities of anonymous non-party ISP subscribers in shareholder
derivative suit); Anderson v. Hale, No. 00 Civ. 2021, 2001 WL
503045, at *9 (N.D. Ill. May 10, 2001) (granting motion to quash
subpoena seeking identifying information from ISP about
subscribers affiliated with organization); Dendrite Int'l, Inc.
v. Doe, 775 A.2d 756, 760, 772 (N.J. Super. Ct. App. Div. 2001)
(denying motion for expedited discovery to obtain identity of ISP
subscriber due to failure to establish prima facie defamation
a. Is Defendants' Alleged Conduct "Speech?"
As a threshold matter, I address whether the use of P2P file
copying networks to download, distribute, or make available for
distribution copyrighted sound recordings, without permission, is an exercise of speech. I conclude that this
conduct qualifies as speech, but only to a degree.
In contrast to many cases involving First Amendment rights on
the Internet, a person who engages in P2P file sharing is not
engaging in true expression. See, e.g., Reno v. ACLU, 521
U.S. at 870 (participation in Internet chat rooms); America
Online, 2000 WL 1210372, at *1 (same); 2TheMart.Com,
140 F. Supp.2d at 1092 (Internet bulletin board); Dendrite, 775 A.2d
at 759-60 (same); La Société Metro Cash & Carry France v. Time
Warner Cable, No. CV0301974OOS, 2003 WL 22962857, at *1 (Conn.
Super. Ct. Dec. 2, 2003) (email communications through Internet).
Such an individual is not seeking to communicate a thought or
convey an idea. Instead, the individual's real purpose is to
obtain music for free.
Arguably, however, a file sharer is making a statement by
downloading and making available to others copyrighted music
without charge and without license to do so. Alternatively, the
file sharer may be expressing himself or herself through the
music selected and made available to others. Although this is not
"political expression" entitled to the "broadest protection" of
the First Amendment, McIntyre, 514 U.S. at 346 (quoting
Buckley v. Valeo, 424 U.S. 1, 14 (1976),*fn5 the file
sharer's speech is still entitled to "some level of First
Amendment protection." Verizon, 257 F. Supp.2d at 260, rev'd on other
grounds, Recording Indus. Ass'n of America, Inc. v. Verizon
Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003).
I conclude, accordingly, that the use of P2P file copying
networks to download, distribute, or make sound recordings
available qualifies as speech entitled to First Amendment
protection. That protection, however, is limited, and is subject
to other considerations.
b. Are Defendants' Identities Protected from Disclosure by
the First Amendment?
I consider next whether the Doe defendants' identities are
protected from disclosure by the First Amendment. For the reasons
set forth below, I conclude that the First Amendment does not bar
disclosure of the Doe defendants' identities.
Cases evaluating subpoenas seeking identifying information from
ISPs regarding subscribers who are parties to litigation have
considered a variety of factors to weigh the need for disclosure
against First Amendment interests. These factors include: (1) a
concrete showing of a prima facie claim of actionable harm, see
Seescandy.Com, 185 F.R.D. at 577, 579-81 (permitting plaintiff
to request discovery, based on particular factors, to determine
identities of defendants known only by Internet pseudonyms and
domain name registration identities); America Online, 2000 WL
1210372, at *8, rev'd on other grounds, America Online, Inc.
v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001);
Dendrite, 775 A.2d at 760; (2) specificity of the discovery request, Seescandy.Com, 185 F.R.D. at 578, 580;
Dendrite, 775 A.2d at 760; (3) the absence of alternative means
to obtain the subpoenaed information, see Seescandy.Com,
185 F.R.D. at 579; (4) a central need for the subpoenaed information
to advance the claim, America Online, 2000 WL 1210372, at *8;
Dendrite, 775 A.2d at 760-61; and (5) the party's expectation
of privacy, Verizon, 257 F. Supp.2d at 260-61, 267-68, rev'd
on other grounds, Recording Indus. Ass'n of America, Inc. v.
Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003).
As set forth below, each of these factors supports disclosure of
i. Prima Facie Claim of Copyright Infringement
Plaintiffs have made a concrete showing of a prima facie claim
of copyright infringement. A prima facie claim of copyright
infringement consists of two elements: "(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work
that are original." Arden v. Columbia Pictures Indus., Inc.,
908 F. Supp. 1248, 1257 (S.D.N.Y. 1995) (quoting Feist Publ'ns,
Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991)).
Plaintiffs have alleged ownership of the copyrights or
exclusive rights of copyrighted sound recordings at issue in this
case sufficiently to satisfy the first element of copyright infringement. (Compl. ¶¶ 23, 24).*fn6 Plaintiffs have
attached to the complaint a partial list of the sound recordings
the rights to which defendants have allegedly infringed. (Id.,
Exh. A). Each of the copyrighted recordings on the list is the
subject of a valid Certificate of Copyright Registration issued
by the Register of Copyrights to one of the record company
plaintiffs. (Id. ¶ 23). Plaintiffs also allege that among the
exclusive rights granted to each plaintiff under the Copyright
Act are the exclusive rights to reproduce and distribute to the
public the copyrighted recordings. (Id. ¶ 24). Defendants have
failed to refute in any way plaintiffs' allegations of ownership.
Plaintiffs have also adequately pled the Doe defendants'
infringement of plaintiffs' licenses and copyrights, thus
satisfying the second element in a copyright infringement claim.
Plaintiffs allege that each defendant, without plaintiffs'
consent, "used, and continues to use an online media distribution
system to download, distribute to the public, and/or make
available for distribution to others" certain of the copyrighted
recordings in Exhibit A to the complaint. (Id. ¶ 25).
Plaintiffs have submitted supporting evidence listing the
copyrighted songs downloaded or distributed by defendants using
P2P systems. (Id., Exh. A; Whitehead Decl. I, Exhs. 1-3). The
lists also specify the date and time at which defendants' allegedly infringing activity occurred and the IP address
assigned to each defendant at the time. (Compl., Exh. A).
Moreover, the use of P2P systems to download and distribute
copyrighted music has been held to constitute copyright
infringement. See A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004, 1013-14 (9th Cir. 2001) (holding that downloading and
distribution of copyrighted music via P2P network Napster
constituted copyright infringement); In re Aimster Copyright
Litigation, 334 F.3d 643, 653 (7th Cir. 2003) (affirming grant
of preliminary injunction against P2P network Aimster in absence
of evidence that system was used to transfer non-copyrighted
files), cert. denied, Deep v. Recording Indus. Ass'n of
America, Inc., 124 S.Ct. 1069 (2004). Accordingly, plaintiffs
have sufficiently pled copyright infringement to establish a
prima facie claim.
ii. Specificity of the Discovery Request
Plaintiffs' discovery request is also sufficiently specific to
establish a reasonable likelihood that the discovery request
would lead to identifying information that would make possible
service upon particular defendants who could be sued in federal
court. See Seescandy.Com, 185 F.R.D. at 578, 580; Dendrite,
775 A.2d at 760. Plaintiffs seek identifying information about
particular Cablevision subscribers, based on the specific times
and dates when they downloaded specific copyrighted and licensed
songs. (Compl., Exh. A.; Whitehead Decl. I, Exhs. 1-3). Such information will enable plaintiffs to
serve process on defendants.
iii. Absence of Alternative Means to Obtain Subpoenaed
Plaintiffs have also established that they lack other means to
obtain the subpoenaed information by specifying in their ex parte
application for expedited discovery and papers in opposition to
Jane Doe's motion to quash the steps they have taken to locate
the Doe defendants. See Seescandy.Com, 185 F.R.D. at 579.
These include using a publicly available database to trace the IP
address for each defendant, based on the times of infringement.
(Pl. Mem. 1-2; Pl. Opp. 2-4; Whitehead Decl. I ¶¶ 12, 16).
iv. Central Need for Subpoenaed Information
Plaintiff have also demonstrated that the subpoenaed
information is centrally needed for plaintiffs to advance their
copyright infringement claims. See America Online, 2000 WL
1210372, at *8; Dendrite, 775 A.2d at 760-61. Ascertaining the
identities and residences of the Doe defendants is critical to
plaintiffs' ability to pursue litigation, for without this
information, plaintiffs will be unable to serve process.
v. Defendants' Expectation of Privacy
Plaintiffs are also entitled to discovery in light of
defendants' minimal expectation of privacy. See Verizon,
257 F. Supp.2d at 260-61, 267-68, rev'd on other grounds,
Recording Indus. Ass'n of America, Inc. v. Verizon Internet
Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003). Cablevision's Terms of Service,
to which its subscribers including the Doe defendants must
commit, specifically prohibit the "[t]ransmission or distribution
of any material in violation of any applicable law or
regulation. . . . This includes, without limitation, material
protected by copyright, trademark, trade secret or other
intellectual property right used without proper authorization."
(Cablevision Mem. 2 (citing
the Terms of Service state that "Cablevision has the right . . .
to disclose any information as necessary to satisfy any law,
regulation or other governmental request." (Cablevision Mem. 2
Accordingly, defendants have little expectation of privacy in
downloading and distributing copyrighted songs without
permission. See Verizon, 257 F. Supp.2d at 260-61, 267-68,
rev'd on other grounds, Recording Indus. Ass'n of America,
Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir.
In sum, defendants' First Amendment right to remain anonymous
must give way to plaintiffs' right to use the judicial process to pursue what appear to be meritorious copyright
B. Personal Jurisdiction
Jane Doe and amici ask the Court to quash the subpoena based on
the absence of personal jurisdiction.*fn8 This argument is
rejected as premature.
First, this Court has the discretion to allow discovery to
determine the basis for personal jurisdiction. See Volkart
Bros., Inc. v. M/V Palm Trader, 130 F.R.D. 285, 290 (S.D.N.Y.
1990) (citing cases).
Second, without the identifying information sought by
plaintiffs in the Cablevision subpoena, it would be difficult to
assess properly the existence of personal jurisdiction over the
Doe defendants. This analysis requires an evaluation of the
contacts between the various defendants and the forum state. See
LiButti v. United States, 178 F.3d 114, 122 (2d Cir. 1999)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985));
Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 23 (2d
Cir. 1988) (same). A holding at this stage that personal
jurisdiction is lacking would be premature. Amici argue, however, that personal jurisdiction is lacking
because research techniques available to plaintiffs prior to this
litigation show the likelihood that the majority of the Doe
defendants are not New York residents. (Am. Cur. Mem. 11). A
supporting declaration by Seth Schoen, staff technologist with
amicus curiae Electronic Frontier Foundation, explains the
process by which defendants' IP addresses can be matched up with
specific geographic designations, using a publicly available
database operated by the American Registry for Internet Numbers.
(See Schoen Decl.). These geographic designations indicate the
"likely" locations of the residences or other venues where
defendants used their Internet-connected computers. (Id. ¶¶
5-9). Amici maintain that as many as thirty-six of the forty Doe
defendants are "likely" to be found outside of New York. (Id. ¶
Plaintiffs, however, dispute the accuracy of the methods
described in the Schoen Declaration. (Pl. Opp. 18 n. 11;
Whitehead Decl. II ¶ 9). According to plaintiffs, the
geographical designations fall "far short" of 100 percent
accuracy and are "often extremely inaccurate." (Whitehead Decl.
II ¶ 9).
Assuming personal jurisdiction were proper to consider at this
juncture, the techniques suggested by amici, at best, suggest the
mere "likelihood" that a number of defendants are located outside
of New York. This, however, does not resolve whether personal
jurisdiction would be proper. Accordingly, I decline to rule on personal jurisdiction at this
time and deny Jane Doe's motion to quash based on lack of
Jane Doe and amici further urge the Court to quash the subpoena
based on improper joinder. Although they raise a fair issue as to
whether all these claims against forty apparently unrelated
individuals should be joined in one lawsuit, discussion of
joinder is not germane to the motions to quash before the Court,
as the remedy for improper joinder is severance, see
Fed.R.Civ.P. 21, and not the quashing of the subpoena at issue here.
Accordingly, as consideration of joinder is premature, I deny
Jane Doe's motion to quash based on improper joinder.
D. Factual Showing for Expedited Discovery
Jane Doe and amici also argue that plaintiffs have not made a
"sufficient factual showing" to justify disclosure of defendants'
personal information. (2/19/04 Letter from Hanko to Court; 4/7/04
Letter from Jane Doe to Court; Am. Cur. Mem. 1). Plaintiffs
argue, however, that "good cause" justified the expedited
discovery permitted by the Court upon plaintiffs' ex parte
application. (Pl. Opp. 7-10).
Parties are essentially urging the Court to revisit its January
26, 2004 Order, by which I permitted plaintiffs to serve
immediate discovery. I decline to do so and confine my inquiry,
as set forth above, to the motions to quash the subpoena. CONCLUSION
For the reasons set forth above, defendants' motions to quash
the subpoena are denied and the arguments raised by amici are
rejected. Amici's request that plaintiffs be ordered to return
the subpoenaed information to Cablevision and to refrain from
using it is denied. Plaintiffs may file and serve an amended
complaint by August 16, 2004.