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Donkeyball Movie, LLC, Plaintiff v. Does 1-171

May 12, 2011

DONKEYBALL MOVIE, LLC, PLAINTIFF,
v.
DOES 1-171, 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 a protective order filed by putative defendant Kylauna McDonald.*fn1 Ms. McDonald has yet to be named as a defendant in this case, but claims to have received a notice from Comcast, her Internet Service Provider (hereinafter "ISP"), that plaintiff Donkeyball Movie, LLC seeks her 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 Familiar Strangers. Ms. McDonald has filed motions seeking to prevent disclosure of her identifying information and otherwise to secure dismissal from the lawsuit. For the reasons set forth below, the putative defendant‟s motions to quash, dismiss, and for a protective order are denied.

I.BACKGROUND

On September 10, 2010, plaintiff Donkeyball Movie, LLC filed a Complaint against 171 unnamed individuals who allegedly used a file-sharing protocol called BitTorrent to illegally infringe plaintiff‟s copyright in the motion picture Familiar Strangers. Compl. ¶ 3, ECF No. 1. These unnamed computer users are identified only by their IP addresses. Given that the defendants in this case were unidentified at the time the plaintiff filed its Complaint, on October 19, 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, Oct. 19, 2010, ECF No. 6 (Sullivan, J.). Specifically, the Court authorized the plaintiff to obtain "information sufficient to identify each Defendant, including name, address, telephone number, email address, and Media Access Control address." Id. at 1. This information was to be "used by Plaintiff solely for the purpose of protecting the Plaintiff‟s rights as set forth in the Complaint." Id.

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 Court directed ISPs to send notices to putative defendants informing them of their right to challenge release of their information in this Court. Id. at 2. On April 4, 2011, the Court directed the plaintiff to dismiss the putative defendants that it did not intend to sue and to submit a report listing the putative defendants for whom it had yet to receiving identifying information. Order, Apr. 4, 2011, ECF No. 29. On April 15, 2011, the plaintiff voluntarily dismissed 117 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. 30.

The Court is now presented with motions from a putative defendant who seeks to prevent disclosure of her identifying information or otherwise obtain dismissal from the lawsuit. ECF No. 31. The putative defendant generally denies using BitTorrent to download and distribute the plaintiff‟s movie, and has filed a motion to quash under on FED. R. CIV. P. 45(c)(3), as well as a motion to dismiss asserting that she is improperly joined with other putative defendants, and a motion to dismiss for lack of personal jurisdiction. Additionally, the putative defendant has filed a motion for a protective order. For the reasons stated below, the Court denies all of these motions.

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

Putative defendant Kylauna McDonald has filed a motion to quash the plaintiff‟s subpoena to ISP Comcast on grounds that she has "no knowledge of the alleged infringement" and because the subpoena subjects her to an undue burden. Kylauna McDonald‟s Mot. Quash and/or Vacate Subpoena, ECF No. 31; Kylauna McDonald‟ Aff. Supp. Mot. to Dismiss, Mot. to Quash, and General Defenses, ECF No. 31, at 3; 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). The putative defendant‟s general denial that she engaged in copyright infringement is not a basis for quashing the plaintiff‟s subpoena. It may be true that Ms. McDonald has no knowledge of the alleged illegal infringement of the plaintiff‟s copyrighted movie, and the plaintiff may, based on its evaluation of this assertion, decide not to name Ms. McDonald as a party in this lawsuit. On the other hand, the plaintiff may decide to name Ms. McDonald as a defendant in order to have the opportunity to contest the merits and veracity of her defense in this case. In other words, if Ms. McDonald is named as a defendant in this case, she may deny allegations that she used BitTorrent to copy and distribute illegally the plaintiff‟s movie, present evidence to corroborate that defense, and move to dismiss the claims against her. A general denial of liability, however, is not a basis for quashing the plaintiff‟s subpoena and preventing the plaintiff from obtaining Ms. McDonald‟s identifying information. That would deny the plaintiff access to the information critical to bringing Ms. McDonald properly into the lawsuit to address the merits of both the plaintiff‟s claim and Ms. McDonald‟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.").

The putative defendant‟s argument that the plaintiff‟s subpoena subjects her to an undue burden is also unavailing. Ms. McDonald essentially argues that the plaintiff‟s subpoena requires her to litigate in a forum in which she should not be subject to personal jurisdiction, which causes her hardship. As explained more fully infra, the putative defendant‟s personal jurisdiction arguments are premature at this time because she has not been named as a party to this lawsuit. Given that she is not a named party, Ms. McDonald is not required to respond to the allegations presented in the plaintiff‟s Complaint or otherwise litigate in this district. The plaintiff has issued a subpoena to Comcast, the putative defendant‟s ISP, not to the putative defendant herself. Consequently, Ms. McDonald faces no obligation to produce any information under the subpoena issued to Comcast and cannot claim any hardship, let alone undue hardship.*fn3

The putative defendant raises an additional argument in support of her motion to quash based upon her privacy interests. Although the plaintiff‟s subpoena was not issued to her, she seeks to quash the plaintiff‟s subpoena "pursuant to the personal right and privilege of protection of information." McDonald Mot. Quash and/or Vacate Subpoena, ECF No. 31, at 1. 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 Ms. Mcdonald‟s First Amendment right to anonymous speech is implicated by disclosure of her 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 defendant may have in this context does not shield her from allegations of copyright infringement.*fn4 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 subpoena requesting the putative defendant‟s identifying information from Comcast does not subject her 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 subpoena. Accordingly, Ms. ...


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