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Call of the Wild Movie, LLC v. Jason Smith

May 12, 2011

CALL OF THE WILD MOVIE, LLC,
PLAINTIFF,
v.
JASON SMITH, JOSEPH SONKA, AND DOES 1-331,
DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Pending before the Court are motions to dismiss, quash, and for protective orders filed by five putative defendants: Mickey J. Viles, ECF No. 26 (motions to dismiss, quash, and for protective order); Brandon Lown, ECF No. 31 (motion to quash); Donna Lynk, ECF Nos. 33, 42 (motions to dismiss, quash, and for protective order); Jerrydon Vidal, ECF No. 51 (motions to dismiss and quash); and Kumar Abhinay Rathore, ECF No. 55 (motions to dismiss, quash, and for protective order).*fn1 These individuals have yet to be named as defendants in this case, but claim to have received notices from their Internet Service Providers (hereinafter "ISPs") that plaintiff Call of the Wild LLC seeks their identifying information in connection with allegations in the Complaint that certain IP addresses used a file-sharing program called BitTorrent to download and distribute illegally the plaintiff's copyrighted movie Call of the Wild. In response, these five putative defendants have filed motions seeking to prevent disclosure of their identifying information and otherwise to secure dismissal from the lawsuit. For the reasons set forth below, the putative defendants' motions to quash, dismiss, and for protective orders are denied.

I.BACKGROUND

On March 19, 2010, plaintiff Call of the Wild Movie, LLC filed a Complaint against 358 unnamed individuals who allegedly used a file-sharing protocol called BitTorrent to illegally infringe plaintiff's copyright in the motion picture Call of the Wild. Compl. ¶ 3, ECF No. 1. These unnamed computer users are identified only by their IP addresses. The plaintiff subsequently filed an Amended Complaint adding 704 putative defendants, bringing the total number of such defendants to 1,062. Am. Compl., May 12, 2010, ECF No. 6. Given that the defendants in this case were unidentified at the time the plaintiff filed its Complaint and Amended Complaint, on April 15, 2010, the Court granted the plaintiff leave to subpoena ISPs to obtain identifying information for the putative defendants. Order Granting the Pl.'s Mot. for Leave to Take Disc. Prior to Rule 26(f) Conference, Apr. 15, 2010, ECF No. 4 (Urbina, J.). Specifically, the Court authorized the plaintiff to obtain "information sufficient to identify each defendant, including his or her name, current and permanent address(es), telephone number(s), e-mail address(es), and Media Access Control address(es)." Id. at 2. This information was to be "used by the plaintiff solely for the purpose of protecting the plaintiff's rights as set forth in the complaint." Id. at 3.

Since the Court approved expedited discovery, ISPs have provided identifying information for the putative defendants in response to the plaintiff's subpoenas on a rolling basis.*fn2 Prior to providing the plaintiff with a putative defendant's identifying information, however, the ISPs sent notices to the putative defendants informing them of their right to challenge release of their information in this Court.*fn3 On April 4, 2011, the Court directed the plaintiff (1) to file a Second Amended Complaint naming those putative defendants for whom it had obtained identifying information and that it intended to sue for copyright infringement in this jurisdiction; (2) to dismiss the putative defendants that it did not intend to sue; and (3) to submit a report listing the putative defendants for whom it had yet to receiving identifying information. On April 15, 2011, the plaintiff voluntarily dismissed 729 putative defendants for which it had received identifying information but did not intend to sue in this Court. Pl.'s Notice of Voluntary Dismissal, Apr. 15, 2011, ECF No. 50. On April 21, 2011, the Court granted the plaintiff leave to file its Second Amended Complaint, which lists 331 putative defendants, and two named defendants, Jason Smith and Joseph Sonka. Second Am. Compl., ECF No. 53. None of the putative defendants with pending motions were dismissed. Pl.'s Notice of Voluntary Dismissal, Apr. 15, 2011, ECF No. 50, at 1.

The Court is now presented with motions from five putative defendants who seek to prevent disclosure of their identifying information or otherwise obtain dismissal from the lawsuit: putative defendant Brandon Lown has filed a motion to quash, ECF No. 31, in which he generally denies using BitTorrent to download and distribute the plaintiff's movie; and putative defendants Mickey J. Viles, Donna Lynk, Jerrydon Vidal, and Kumar Abhinay Rathore have filed motions to quash under on FED. R. CIV. P. 45(c)(3), as well as motions to dismiss based on improper joinder and lack of personal jurisdiction. See ECF Nos. 26, 33, 51, 55. Additionally, Mickey J. Viles, Donna Lynk, and Kumar Abhinay Rathore have filed motions for protective orders. See ECF Nos. 26, 42, 55. For the reasons stated below, the Court denies all of the putative defendants' motions.

II.MOTIONS TO QUASH UNDER FEDERAL RULE OF CIVIL PROCEDURE 45

Putative defendant Brandon Lown has filed a motion to quash the plaintiff's subpoena to ISP Comcast on grounds that he has "not engaged in any illegal activity" and is "accused of a crime [he] did not commit." Putative Def. Brandon Lown's Mot. Quash Subpoena, ECF No. 31, at 1, 3. Additionally, putative defendants Mickey J. Viles, Donna Lynk, Jerrydon Vidal, and Kumar Abhinay Rathore urge the Court to quash the plaintiff's subpoena to ISPs Comcast and Cox Communications because it subjects them to an undue burden. See ECF Nos. 26, 33, 51, 55; see also FED. R. CIV. P. 45(c)(3)(A)(iv). Both of these arguments are unavailing.

Under Federal Rule of Civil Procedure 45(c), the Court must quash a subpoena when, inter alia, it "requires disclosure of privileged or other protected matter, if no exception or waiver applies" or "subjects a person to undue burden." FED. R. CIV. P. 45(c)(3)(A)(iii)-(iv). Mr. Lown's general denial that he engaged in copyright infringement is not a basis for quashing the plaintiff's subpoena. It may be true that Mr. Lown did not illegally infringe the plaintiff's copyrighted movie, and the plaintiff may, based on its evaluation of this assertion, decide not to name Mr. Lown as a party in this lawsuit. On the other hand, the plaintiff may decide to name Mr. Lown as a defendant in order to have the opportunity to contest the merits and veracity of Mr. Lown's defense in this case. In other words, if Mr. Lown is named as a defendant in this case, Mr. Lown may deny allegations that he used BitTorrent to illegally copy and distribute the plaintiff's movie, present evidence to corroborate that defense, and move to dismiss the claims against him. A general denial of liability, however, is not a basis for quashing the plaintiff's subpoena and preventing the plaintiff from obtaining Mr. Lown's identifying information. That would deny the plaintiff access to the information critical to bringing Mr. Lown properly into the lawsuit to address the merits of both the plaintiff's claim and Mr. Lown's defense. See Achte/Neunte Boll Kino Beteiligungs GMBH & Co, KG v. Does 1-4,577, 736 F. Supp. 2d 212, 215 (D.D.C. 2010) (denying motions to quash filed by putative defendants in BitTorrent file-sharing case and stating that putative defendants' "denial of liability may have merit, [but] the merits of this case are not relevant to the issue of whether the subpoena is valid and enforceable. In other words, they may have valid defenses to this suit, but such defenses are not at issue [before the putative defendants are named parties]."); see also Fonovisa, Inc. v. Does 1-9, No. 07-1515, 2008 WL 919701, at *8 (W.D. Pa. Apr. 3, 2008) (if a putative defendant "believes that it has been improperly identified by the ISP, [the putative defendant] may raise, at the appropriate time, any and all defenses, and may seek discovery in support of its defenses.").

Ms. Lynk and Messrs. Viles, Vidal, and Rathore's argument that the plaintiff's subpoenas subject them to an undue burden is also unavailing. These putative defendants essentially argue that the plaintiff's subpoenas require them to litigate in a forum in which they should not be subject to personal jurisdiction, which causes them hardship. As explained more fully infra, the putative defendants' personal jurisdiction arguments are premature at this time because they have not been named as parties to this lawsuit. Given that they are not named parties, the putative defendants are not required to respond to the allegations presented in the plaintiff's Second Amended Complaint or otherwise litigate in this district. The plaintiff has issued subpoenas to the putative defendants' ISPs, not to the putative defendants themselves. Consequently, the putative defendants face no obligation to produce any information under the subpoenas issued to their respective ISPs and cannot claim any hardship, let alone undue hardship.*fn4

Mr. Lown raises an additional argument in support of his motion to quash based upon his privacy interests. He states that "a lawyer" informed him that "even though [he had] no involvement in this activity, the plaintiff could access [his] computer." Putative Def. Brandon Lown's Mot. Quash Subpoena, ECF No. 31, at 2. This, he states, "is a clear invasion of privacy. No right is to be given for someone to view my personal information on my personal computer." Id. Rule 45(c)(3)(A)(iii) instructs a Court to quash a subpoena if it "requires disclosure of privileged or other protected matter." FED. R. CIV. P. 45(c)(3)(A)(iii). This rule, however, does not apply here.

First, the Court has granted the plaintiff authority to obtain Mr. Lown's identifying information -- i.e., his name, address, phone number, email, and media access control number -- from Mr. Lown's ISP. The Court has not authorized the plaintiff to access Mr. Lown's computer or view any data stored therein. See Order Granting the Pl.'s Mot. for Leave to Take Disc. Prior to Rule 26(f) Conference, Apr. 15, 2010, ECF No. 4 (Urbina, J.). Second, the Court recognizes that the putative defendants' First Amendment right to anonymous speech is implicated by disclosure of their identifying information. See Sony Music Entm't, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564 (S.D.N.Y. 2004) ("the file sharer may be expressing himself or herself through the music selected and made available to others."); see also London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 163 (D. Mass. 2008). Nevertheless, whatever asserted First Amendment right to anonymity the putative defendants may have in this context does not shield them from allegations of copyright infringement.*fn5 See Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 8 (D.D.C. 2008) ("First Amendment privacy interests are exceedingly small where the 'speech' is the alleged infringement of copyrights."); Achte/Neunte,736 F. Supp. 2d at 216 n.2 ("the protection afforded to such speech is limited and gives way in the face of a prima facie showing of copyright infringement"); West Bay One, Inc. v. Does 1-1653, 270 F.R.D. 13, 16 n.4 (D.D.C. 2010) (same); Sony, 326 F. Supp. 2d at 567 (First Amendment right of alleged file-sharers to remain anonymous "must give way to the plaintiffs' right to use the judicial process to pursue what appear to be meritorious copyright infringement claims."); Elektra Entm't Grp., Inc. v. Does 1-9, No. 04-2289, 2004 WL 2095581, at *4-5 (S.D.N.Y. Sept. 8, 2004) (finding that First Amendment right to anonymity is overridden by plaintiff's right to protect copyright).

The plaintiff's subpoenas requesting the putative defendants' identifying information do not subject the putative defendants to an undue burden nor is the plaintiff's request for the information outweighed by any privacy interest or First Amendment right to anonymity. Moreover, a general denial of liability is not a proper basis to quash the plaintiff's subpoenas. Accordingly, the putative ...


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