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ELEKTRA ENTERTAINMENT GROUP, INC. v. DOES 1-9

September 7, 2004.

ELEKTRA ENTERTAINMENT GROUP, INC., Plaintiff,
v.
DOES 1-9, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

Defendant Doe No. 7 has moved pursuant to Fed.R. Civ. P. 45(c)(3)(A)(iii) to quash the subpoena served upon New York University ("NYU"), and pursuant to Fed.R. Civ. P. 20 and 21 to sever Doe No. 7 from this action and to require plaintiffs to file a separate action against him. Doe No. 7 also moves to dismiss the complaint against him for lack of personal jurisdiction. For the reasons set forth below, the motion to quash is denied, as is the motion to dismiss. The motion to sever Doe No. 7 is granted.

Parties

  Plaintiffs Elektra Entertainment Group Inc. ("Elektra"), Capitol Records, Inc. ("Capitol"), Atlantic Recording Corp. ("Atlantic"), Interscope Records ("Interscope"), Arista Records, Inc. ("Arista"), Motown Record Company, L.P. ("Motown"), Warner Bros. Records Inc. ("Warner Bros."), UMG Recordings, Inc. ("UMG"), Maverick Recording Co. ("Maverick"), Sony Music Entertainment Inc. ("Sony"), Virgin Records America, Inc. ("Virgin"), BMG Music ("BMG") (collectively, the "plaintiffs") are major recording companies who own copyrights in sound recordings. According to the complaint, the defendants are or were active participants in Fast Track, a peer-to-peer ("P2P") network. A P2P network is an online media distribution system that allows users to have their computers function as an interactive Internet site, disseminating files for other users to copy. Each defendant is alleged to have offered copyrighted sound recordings stored on his or her computer for others to download and to have downloaded copyrighted sound recordings from other users of the Fast Track network.

  Prior Proceedings

  On March 23, 2004, plaintiffs filed their complaint. On March 25, 2004, this Court granted plaintiffs' ex parte motion to take expedited discovery, which was narrowly targeted to identifying the defendants. According to plaintiffs, NYU has matched the IP addresses to its list of computer users and notified the defendants that plaintiffs sought their identification in connection with this case. Of the 9 defendants, only Doe No. 7 has filed a motion to quash. NYU has informed plaintiffs that NYU will not produce the identities of any of the defendants until this motion has been resolved.

  Doe No. 7 served this motion on opposing counsel on April 28, 2004. After exchange of briefs, argument was heard on the motion on May 5, 2004, at which time the motion was deemed fully submitted.

  Background

  The plaintiffs allege that they have found each of the defendants openly disseminating sound recordings whose copyrights they own on the P2P network. Plaintiffs themselves logged on to the P2P network and viewed the files that each defendant was offering to other users. According to plaintiffs, each defendant has chosen to make available from his or her computer hundreds of sound recordings whose copyrights are owned by various of the plaintiffs.

  Doe No. 7 is alleged to be a user of the Kazaa system, one of the most popular forms of peer-to-peer software. Users of the Kazaa system connect to the Fast Track network, as do all of the defendants in this case.

  While plaintiffs were able to gather significant information about the defendants' allegedly infringing conduct, they were not able to ascertain the name, address or any other contact information for any of the defendants. Instead, plaintiffs could only identify the Internet Protocol ("IP") address from which each defendant was disseminating plaintiffs' copyrighted works.

  An IP address is a 10-digit number that specifically identifies a particular computer using the Internet. Using the IP address, plaintiffs determined that each defendant was using NYU's network facilities to disseminate the plaintiffs' copyrighted works. From the IP address provided by plaintiffs, NYU can match the IP address, date and time with the computer that was using the IP address when plaintiffs observed the alleged infringement. NYU is therefore the only entity that can identify the defendants in this case.

  NYU's "Guidelines for Compliance With the Family Educational Rights and Privacy Act" (the "privacy guidelines") state that NYU will release identifying information without the consent of the student in response to a civil subpoena "provided that the University attempts to notify the student of the order or subpoena before complying with it . . ." http://www.nyu.edu/apr/ferpa.htm. NYU's Information Technology Services includes among the "responsibilities of all NYU computer and network users" that each account holder "will respect the rights of copyright owners, ...


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