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