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Arista Records LLC v. Does 1-19

April 28, 2008

ARISTA RECORDS LLC, ET AL., PLAINTIFFS,
v.
JOHN DOES 1-19, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This is a copyright infringement case in which Plaintiffs, ten music and recording entities, allege that nineteen unidentified "John Doe" Defendants infringed their copyrighted recordings by downloading and/or distributing the recordings using an online media distribution system.*fn1 Simultaneous with the filing of their Complaint, Plaintiffs filed an ex parte Motion for Leave to Take Immediate Discovery by serving a subpoena on non-party Internet Service Provider, The George Washington University ("GW"), to obtain identifying information for each Defendant. The Court initially granted the Motion for Leave and Plaintiffs served a subpoena on GW. Prior to GW's response, Counsel for John Doe #3 filed a Motion with the Court seeking to (i) vacate the Court's Order granting leave to take immediate discovery, (ii) quash Plaintiffs' subpoena, and (iii) dismiss Plaintiffs' Complaint. GW also filed a Motion seeking an extension of time to respond to the subpoena given Defendant's Motion, which the Court held in abeyance. After thoroughly reviewing the submissions of the Parties and non-Party GW, including all of the attachments thereto, applicable statutory authority and case law, the Court shall grant in part and deny in part Defendant's [8] Motion to Vacate the Court's Order dated October 11, 2007, to Quash the Subpoena, and to Dismiss Plaintiffs' Complaint, and deny as moot GW's [9] Motion for Extension of Time to respond to Plaintiffs' subpoena, for the reasons that follow.

I. BACKGROUND

Plaintiffs filed their Complaint on September 19, 2007, alleging that "each Defendant, without the permission or consent of Plaintiffs, has continuously used, and continues to use, an online media distribution system to download and/or distribute to the public certain" musical recordings. Compl. ¶ 19. The Complaint further alleges that Plaintiffs are "copyright owners or licensees of exclusive rights" of the recordings, id. ¶ 17, that each of the recordings is "the subject of a valid Certificate of Registration issued by the Register of Copyrights to each Plaintiff," id. ¶ 17, and that Plaintiffs have placed proper notices of copyright on each respective album cover of each of the recordings pursuant to 17 U.S.C. § 401, id. ¶ 20. Plaintiffs' Complaint identifies each Defendant by an Internet Protocol ("IP") address, and includes corresponding lists of the recordings allegedly infringed by each Defendant. Id., Ex. A (IP addresses and recordings associated with each Defendant).

Simultaneous with the filing of their Complaint on September 19, 2007, Plaintiffs filed an ex parte [3] Motion for Leave to Take Immediate Discovery. The Motion explained that Plaintiffs had identified each Defendant by an IP address assigned on the date and the time of each Defendant's allegedly infringing conduct. See Pl.'s Mot. for Leave at 2. The Motion also explained that Plaintiffs gathered evidence of each Defendant's infringing activities, including evidence of "every file (at times numbering in the thousands) that each Defendant illegally distributed to the public." Id. Without the ability to serve immediate discovery on the Internet Service Provider ("ISP"), however, Plaintiffs indicated that they were unable to ascertain the true identities of the Defendants. Id. at 2-3 & n.2. Accordingly, the Motion sought leave of Court to serve a subpoena on GW, the ISP, to obtain identifying information for each Defendant. Id. at 7-8.

The Court granted Plaintiffs' Motion for Leave to Take Immediate Discovery in an Order and accompanying Memorandum Opinion on October 11, 2007. Based on the allegations in Plaintiffs' Complaint and the representations in Plaintiffs' Motion, the Court found that expedited discovery was appropriate and necessary because "Defendants must be identified before this suit can progress further." Mem. Op. at 2 (Oct. 11, 2007). Accordingly, the Court authorized Plaintiffs to serve immediate discovery on GW to obtain "information sufficient to identify each Defendant, including name, current (and permanent) addresses, telephone numbers, email addresses, and Media Access Control addresses." Id. The Court also ordered GW to notify the Defendants within five business days after receiving a subpoena from Plaintiffs, and to preserve the subpoenaed information pending resolution of any timely filed motion to quash. Id. Finally, the Court's Memorandum Opinion stated that it was ordering disclosure of the information pursuant to 47 U.S.C. § 551(c)(2)(B), which authorizes cable operators to disclose personally identifiable information when cable operators are ordered to do so by a court. Id.

On November 13, 2007, John Doe #3 filed the instant [8] Motion to Vacate the Court's Order Granting Expedited Discovery, to Quash the Subpoena, and to Dismiss the Complaint. The Motion argued, inter alia, that Plaintiffs' discovery was not authorized by 47 U.S.C. § 551(c)(2)(B), because that statute only applies in the context of a cable operator, and GW is not a cable operator. See Def.'s Mot. at 8. After reviewing Defendant's Motion, the Court ordered Plaintiffs to show cause as to why Defendant's Motion to Quash should not be granted and ordered further briefing with respect to Defendants' other arguments concerning dismissal of Plaintiffs' Complaint. See [10] Order at 1 (Nov. 15, 2007); Minute Orders dated Nov. 15, 2007. GW also filed a [9] Motion seeking an extension of time to respond to Plaintiffs' subpoena, which the Court held in abeyance pending resolution of Defendant's Motion.*fn2 See Minute Order dated Nov. 15, 2007.

Plaintiffs responded to the Court's Show Cause Order on November 29, 2007, indicating that their Motion for Leave to Serve Immediate Discovery was based on Federal Rules of Civil Procedure 26 and 45, and not 47 U.S.C. § 551(c)(2)(B). Pls.' Resp. to Ct. at 2. Although Plaintiffs are correct that their Motion did not expressly rely on 47 U.S.C. § 551(c)(2)(B) for support, Plaintiffs overlook the fact that their Motion attached copies of orders in similar cases that did expressly rely on that statute. See, e.g., Pls.' [3] Mot., Ex. B at 6-7 (Sony BMG Music Entm't v. Does 1-12, Civ. A. No. 07-232 (S.D.W.Va . Apr. 27, 2007)). In any event, Plaintiffs concede that 47 U.S.C. § 551(c)(2)(B) does not apply in the instant proceedings, and have clarified their position that the Federal Rules of Civil Procedure provide the appropriate basis for proceeding with expedited discovery. See Pls.' Resp. to Ct. at 8-9. Accordingly, Plaintiffs ask that the Court discharge its Show Cause Order and permit GW to respond to Plaintiffs' subpoena. Id. at 8.

The Parties followed Plaintiffs' Response to the Court's Show Cause Order with a flurry of submissions. On December 6, 2007, Plaintiffs filed an Opposition to Defendant's Motion to Vacate, Quash, and Dismiss. On December 13, 2007, Defendant filed a Response to Plaintiff's Response to the Court's Show Cause Order.*fn3 On December 25, 2007, Plaintiffs filed a Motion for Leave to file a Sur-Reply, which Defendant Opposed on December 28, 2007. The Court granted Plaintiffs leave to file a Sur-Reply on December 28, 2007.

II. LEGAL STANDARDS AND DISCUSSION

The pending motions require the Court to determine whether Plaintiffs' subpoena should be quashed (and, relatedly, whether the Court should vacate its previous Order granting leave to take immediate discovery) and whether Plaintiffs' Complaint should be dismissed. The Court shall address these issues in turn.

A. Motion to Quash Subpoena and Vacate Order Granting Expedited Discovery

Defendant's Motion offers four reasons as to why the Court should quash Plaintiffs' subpoena: (1) Plaintiff's subpoena is not authorized by 47 U.S.C. § 551(c)(2)(B); (2) Plaintiff's subpoena is not authorized by the Digital Millennium Copyright Act of 1984, 17 U.S.C. § 512(h); (3) Plaintiff's subpoena is not authorized by the Federal Rules of Civil Procedure; and (4) the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g(b)(2), prohibits disclosure of the information sought by Plaintiffs' subpoena. See Def.'s Mot. at 7-14.

The first and second grounds raised by Defendant do not require discussion because Plaintiffs concede that neither statute authorizes Plaintiffs' subpoena in this case. See Pls.' Opp'n at 5-6. The fourth ground raised by Defendant does not require extended discussion. Although FERPA generally prohibits disclosure of certain records by federally-funded educational institutions, the act expressly authorizes the disclosure of a student's "directory information" pursuant to a lawfully-issued subpoena or court order. See 20 U.S.C. § 1232g(b)(2). Directory information consists of a student's name, address, telephone listing, email address, and other identifying information. See Id. § 1232g(a)(5)(A). In the present action, the Court authorized Plaintiffs to serve a subpoena seeking discovery of each Defendant's name, addresses, telephone numbers, email addresses, and Media Access Control addresses. See [6] Order at 1-2. Because Plaintiffs' subpoena sought to discover directory information*fn4 and was issued pursuant to a Court order, FERPA does not prohibit ...


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