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.
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
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. ...