Plaintiff, Digiprotect USA Corp. ("Digiprotect"), brings this case against unnamed defendants for copyright infringement. This court granted Digiprotect's motion for expedited discovery to seek the identities of defendants in an order dated November 23, 2010. Non-parties Comcast Cable Communications Management, LLC ("Comcast") and Time Warner Cable, Inc. ("TWC") move separately to modify the November 23, 2010 order.
Digiprotect filed its original complaint in this case on November 19, 2010. The complaint alleged that 266 unidentified defendants illegally downloaded and shared the pornographic film Anal Fanatic Vol. 1 via peer-to-peer file sharing networks. The film was produced by Patrick Collins, Inc., a California corporation, d/b/a Elegant Angel Productions, a studio located in California. Digiprotect, rather than the film's producer, is plaintiff in this case because Digiprotect purchased from Patrick Collins, Inc. the narrow right to distribute this film via peer-to-peer file sharing networks such as those allegedly used by defendants. Digiprotect acquires such rights from various copyright holders in order to--as Digiprotect's counsel described it--"educate consumers." This "education" of consumers consists primarily of bringing suit against such consumers and seeking "modest settlements." Digiprotect, for example, has filed an almost identical suit in this district. Digiprotect USA Corporation v. Does 1-240, No. 10 Civ. 8760 (PAC) (S.D.N.Y. filed November 19, 2010).
Digiprotect's original complaint did not name any individuals but instead attached a list--Exhibit B to the original complaint--of 266 internet protocol ("IP") addresses linked to the alleged infringing activity. These IP addresses correspond to individual accounts with 13 different internet service providers ("ISPs"), including Comcast and TWC, the moving parties now before the court. Digiprotect, although it did not know the location of defendants, asserted in its complaint that this court had personal jurisdiction over defendants primarily because of the injury suffered by Digiprotect--as the copyright license-holder--in New York, and because the nature of peer-to-peer file sharing networks connects all out-of-state defendants with defendants residing in New York.
Shortly after filing its original complaint, Digiprotect moved for
expedited discovery pursuant to Fed. R. Civ. Pro. 26(f) in order to
serve subpoenas on the 13 ISPs to discover the identities of the
account holders associated with the IP addresses listed in Exhibit B.
It was in response to this motion that the November 23, 2010 order was
entered, which is the subject of the motions now before the court. The
current motions are brought by two ISPs, Comcast and TWC,*fn1
seeking protective orders from those subpoenas and to amend
the aforementioned order expediting discovery. Both Comcast and TWC
argued that the subpoenas improperly burdened them both in terms of
time and money. Comcast and TWC originally asked the court to limit
the number of IP addresses they were required to look up per week and
to order Digiprotect to reimburse them for costs incurred in these
look-ups. Comcast and TWC also argued that the subpoenas are improper
as this court lacks personal jurisdiction over the defendants.
Although only two of the 13 ISPs have challenged the court's November 23, 2010 order, Digiprotect has indicated that other ISPs involved have deferred responding to subpoenas while awaiting the court's decision on Comcast and TWC's motions. Given the obvious concern of most ISPs and the common nature of issues involved, this decision, as it relates to personal jurisdiction, will apply not only to Comcast and TWC, but to all the ISPs listed in Exhibit B.
At a hearing on these motions held January 13, 2011, the court sua sponte orally dismissed Digiprotect's claims against all defendants based on lack of personal jurisdiction and misjoinder. The court subsequently reconsidered this dismissal and withdrew its order of dismissal at a hearing held February 2, 2011. Also at that hearing, the court requested that Comcast and TWC present the court with information as to the geographic location of internet accounts connected to the IP addresses for which Digiprotect was seeking account information. Such information, the court was told, is easily accessible and publicly available.
Comcast informed the court that of the 103 IP addresses identified by Digiprotect in its complaint as corresponding to Comcast accounts, none corresponded to Comcast accounts within the state of New York. TWC informed the court that of the 43 IP addresses identified as corresponding to TWC accounts, only ten corresponded to TWC accounts in the state of New York. Thus, out of these 166 Doe defendants for which plaintiff was seeking identifying information from Comcast and TWC, only 10 had internet accounts within the state of New York. Digiprotect does not dispute the accuracy of this information.
Following receipt of this information, the court held a telephone conference where Digiprotect informed the court that, based on its own research, out of all 266 Doe defendants named in this suit only 20 to 25 used internet accounts located in the state of New York. Thus, from the remaining 100 IP addresses--corresponding to accounts with the remaining 11 ISPs--only 10-15 correspond to internet accounts within the state of New York.
During that conference the court noted its concern about ensnaring unsophisticated individuals from around the country in a lawsuit based in New York. The court was concerned then, and remains concerned, that defendants over whom the court has no personal jurisdiction will simply settle with plaintiff rather undertake the time and expense required to assert their rights. Acting on these concerns, the court informed Digiprotect that discovery would only be permitted as to ISP accounts located in the state of New York. To this end, the court suggested that Digiprotect file an amended complaint naming only defendants over whom the court would have personal jurisdiction.
Digiprotect later filed an amended complaint, again listing all 266 Doe defendants. The court continues to believe that discovery is only proper as to those Doe defendants linked to an ISP account located in the state of New York and now so holds with further explanation.
A plaintiff may be denied discovery if it cannot make out a prima facie case for personal jurisdiction over a defendant. See, e.g., Best Van Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007); cf. Fed. R. Civ. Pro. 26(f) (giving the court control over the discovery process and the authority to set limitations on discovery and "determine other such matters as are necessary for the proper management of discovery"). Such a showing is particularly ...