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SONY MUSIC ENTERTAINMENT INC. v. DOES 1-40

July 26, 2004.

SONY MUSIC ENTERTAINMENT INC. et al., Plaintiffs
v.
DOES 1 — 40, Defendants.



The opinion of the court was delivered by: DENNY CHIN, District Judge

OPINION

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 subpoena.

  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

  I. Facts

  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 http://www.optimumonline.com/index.jhtml; jsessionid=IJGQQMJ2FS4OSCQLASDSFEQKBMCIMI5G?pageType=terms)).

  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 enclosed subpoena.
(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, 2004.

  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. ...


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