The opinion of the court was delivered by: Judge Beryl A. Howell
Pending before the Court are motions to dismiss, quash, and for
protective orders filed by 119 putative defendants.*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 Voltage Pictures, 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 The Hurt Locker. These 119 putative defendants have
filed motions and letters 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.
On May 24, 2010, plaintiff Voltage Pictures, LLC filed a Complaint against unnamed individuals who allegedly used a file-sharing protocol called BitTorrent to illegally infringe plaintiff's copyright in the motion picture The Hurt Locker. Compl. ¶ 3, ECF No. 1. Given that the defendants in this case were unidentified at the time the plaintiff filed its Complaint, on June 25, 2010, the Court granted the plaintiff leave to subpoena ISPs to obtain identifying information for the putative defendants. Minute Order dated June 25, 2010 (Urbina, J.).
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, inter alia, to dismiss the putative defendants that it did not intend to sue. Order Granting In Part Pl.'s Mot. Extension of Time to Name and Serve, Apr. 4, 2011, ECF No. 120. On April 15, 2011, the plaintiff voluntarily dismissed 557 putative defendants for whom 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. 125. None of the putative defendants with pending motions were dismissed. Id.
The Court is now presented with motions or letters from 119 putative
defendants who seek to prevent disclosure of their identifying
information or otherwise obtain dismissal from the lawsuit:
thirty-three putative defendants have filed motions in which they
generally deny using BitTorrent to download and distribute the
plaintiff's movie,*fn4 seventy-one putative defendants
have filed motions to quash under on FED. R. CIV. P. 45(c)(3),*fn5
seven putative defendants have filed motions to dismiss asserting that the putative defendants are
improperly joined,*fn6 and forty-two putative
defendants have filed motions to dismiss based on lack of personal
Additionally, thirty-five putative defendants have filed motions for protective orders.*fn8 For the reasons stated below, the Court denies all of these motions.
II.MOTIONS TO QUASH UNDER FEDERAL RULE OF CIVIL PROCEDURE 45
Seventy-one putative defendants have filed motions to quash the plaintiff's subpoenas issued to ISPs for the putative defendants' identifying information. These motions assert three arguments: First, the putative defendant filing the motion did not engage in the alleged illegal conduct and the plaintiff should therefore be prevented from obtaining the putative defendant's identifying information. Second, the subpoena should be quashed because it "requires disclosure of privileged or other protected matter" under FED. R. CIV. P. 45(c)(3)(A)(iii). Third, the plaintiff's subpoenas subject the putative defendant filing the motion to an undue burden under FED. R. CIV. P. 45(c)(3)(A)(iv). All 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). A general denial of engaging in copyright infringement is not a basis for quashing the plaintiff's subpoena. It may be true that the putative defendants who filed motions and letters denying that they engaged in the alleged conduct did not illegally infringe the plaintiff's copyrighted movie, and the plaintiff may, based on its evaluation of their assertions, decide not to name these individuals as parties in this lawsuit. On the other hand, the plaintiff may decide to name them as defendants in order to have an opportunity to contest the merits and veracity of their defenses in this case. In other words, if these putative defendants are named as defendants in this case, they may deny allegations that they used BitTorrent to download and distribute illegally the plaintiff's movie, present evidence to corroborate that defense, and move to dismiss the claims against them. A general denial of liability, however, is not a basis for quashing the plaintiff's subpoenas and preventing the plaintiff from obtaining the putative defendants' identifying information. That would deny the plaintiff access to the information critical to bringing these individuals properly into the lawsuit to address the merits of both the plaintiff's claim and their defenses. 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.").
Thirty putative defendants urge the Court to quash the plaintiff's
subpoenas based upon their privacy interests.*fn9 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. 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.*fn10
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
Finally, the argument that the plaintiff's subpoenas subject putative defendants to an undue burden is also unavailing. 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 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.*fn11
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 ...