The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
On November 19, 2010, DigiProtect USA Corporation ("DigiProtect") commenced this action against 240 Doe Defendants who allegedly infringed its copyright by downloading and distributing unauthorized copies of a pornographic audiovisual work entitled "Let Me Jerk You 2."*fn1 DigiProtect seeks to identify these unnamed defendants by providing the IP addresses associated with the infringing activity to the corresponding Internet Service Providers ("ISP"). On November 29, 2010 in its Order to Show Cause ("OTSC"), the Court ordered limited discovery to identify the subscribers associated with the IP addresses, "subject to the right of each ISP to challenge this Order upon notice to Plaintiff's counsel prior to the return date of the subpoena" (December 28, 2010). On November 30, 2010, DigiProtect served a subpoena on nine ISPs.
On December 27, 2010, third parties Comcast Cable Communications Management, LLC ("Comcast") and Time Warner Cable, Inc. ("Time Warner"; collectively, "Third Party ISPs") moved (1) to modify the OTSC, and (2) for a protective order. Ninety-six of the Doe Defendants are Comcast Internet service subscribers; fifty-five are Time Warner Cable internet service subscribers. The Third Party ISPs argue that complying with the subpoenas would be unduly burdensome in terms of money and time, disrupting their regular business operations and other vital work, such as responding to valid law enforcement requests. They ask the Court to (1) modify the OTSC to "allow for the reimbursement of a substantial amount of the costs Comcast will incur in responding to this or any future subpoena in this action"; and (2) enter a protective order for future subpoenas, limiting the scope of information sought, allowing for a reasonable time to comply, and setting reimbursement amounts. (Mem. in Supp. 1).
At a conference on January 13, 2011, the Court raised the issues of personal jurisdiction over and joinder of the Doe Defendants. After considering the submissions, the Court concludes that DigiProtect failed to establish a prima facie case of personal jurisdiction over these 240 unidentified defendants. Publicly available software provides basic, or at least presumptive, geographic information about IP addresses. DigiProtect offers no reason to make the ISPs responsible for locating the defendants within the Court's jurisdiction. Accordingly, the Court vacates the subpoena and dismisses the complaint, with leave to replead naming only John/Jane Doe Defendants over whom there is prima facie personal jurisdiction.
I.Judge Griesa's Decision
On November 19, 2010, the same day DigiProtect filed this action, it also filed in this district a nearly identical complaint, concerning a different pornographic movie, against 266 other Doe Defendants. See DigiProtect USA Corp. v. John/Jane Does 1-266, No. 10 Civ. 8759 (TPG). That case was assigned to U.S. District Judge Thomas P. Griesa, who signed a nearly identical OTSC and subpoena. DigiProtect, 2011 WL 1466073, at *1. The Third Party ISPs moved to modify the OTSC and for a protective order. Judge Griesa held a hearing on February 2, 2011, at which he ordered Comcast and Time Warner to inform the court of the IP addresses connected to internet accounts located in New York State. Id. The Court learned that, of the 103 IP addresses corresponding to Comcast accounts, none were located within New York State; and, of the 43 IP addresses corresponding to Time Warner accounts, only ten were located within New York State. Id. at *2. At a subsequent telephone conference, DigiProtect informed the court that, based on its own research, only twenty to twenty-five of all 266 Doe Defendants used internet accounts located in New York State. Id. at *2. On April 13, 2011, Judge Griesa granted the motions, limiting discovery to ISP accounts located in New York State. Id. at *5.
DigiProtect argues that the Court has personal jurisdiction over the unnamed defendants because DigiProtect, as the copyright license-holder, suffered injury 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. (Mem. in Supp. 4-5).
The Court may deny discovery if the plaintiff cannot make a prima face case for personal jurisdiction over a defendant. See, e.g., Best Van Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007). The Court applies the law of the forum state-New York-on personal jurisdiction. Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000). General jurisdiction requires that the defendant reside, do business, or be served with process while in New York. See N.Y. C.P.L.R. § 301; see, e.g., Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 565 N.E.2d 488, 490 (N.Y. 1990).
New York's long arm statute also provides jurisdiction over nondomiciliaries who commit a tortious act within the state, N.Y. C.P.L.R. § 302(a)(2); or a tortious act outside the state that resulted in injury within New York, id. § 302(a)(3)(ii). For a copyright infringement claim, under § 302(a)(2), the tortious act committed within the state is the act of infringement, or the illegal download. Yash Raj Films (USA) Inc. v. Dishant.com LLC, No. 08-CV-2715 (ENV)(RML), 2009 WL 4891764, at *7 (E.D.N.Y. Dec. 15, 2009). Under § 302(a)(3)(ii), only the injury must occur in New York; the act of downloading may occur outside the state, but the plaintiff must also show that the nondomiciliary "expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce." N.Y. C.P.L.R. § 302(a)(3)(ii).
Finally, the Due Process Clause requires proof that out-of-state defendants have "certain minimum contacts . . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Calder v. Jones, 465 U.S. 783, 788 (1984) (quotations omitted).
The New York Court of Appeals recently held that, while the site of injury under § 302(a)(3)(ii) in commercial tort cases traditionally has been where business is lost, rather than where the plaintiff is located, "the unique bundle of rights granted to copyright owners" "tips the balance in favor of New York as the situs of the injury" when a New York company's copyright is infringed by ...