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Hard Drive Productions, Inc v. Does 1 -- 1

September 26, 2012

DOES 1 -- 1,495, DEFENDANTS.

The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Hard Drive Productions, Inc. has filed this copyright infringement action against unidentified defendants who allegedly have illegally copied and distributed plaintiff's copyrighted work on the Internet. Currently before the Court is [30] Electronic Frontier Foundation's ("EFF") motion for emergency stay of [18] Magistrate Judge Facciola's December 21, 2011 order and for leave to file an amicus curiae brief seeking reconsideration of that order. For the reasons given below, the motion for leave to file will be granted and the motion for emergency stay and reconsideration will be denied.


Plaintiff filed a complaint against 1,495 unidentified defendants, alleging that each defendant used a peer-to-peer file-sharing protocol called BitTorrent to download and distribute plaintiff's copyrighted motion picture, "Amateur Alleur -- Maelynn," thereby infringing plaintiff's copyright. Compl. ¶¶ 3, 6, 7. Plaintiff does not know defendants' names and has identified defendants only by the Internet Protocol ("IP") addresses assigned by defendants' Internet Service Providers ("ISPs") on the date and at the time of their allegedly infringing activity. Id. ¶ 8. Plaintiff moved for leave to serve the ISPs with subpoenas requesting identifying information about the unidentified defendants. See Pl.'s Mot. for Order to Take Disc. Prior to Rule 26(f) Conference, ECF No. 3. The Court granted plaintiff's motion, authorizing plaintiff to "seek information sufficient to identify each defendant, including name, address, telephone number, email address, and media access control address." Order Granting Pl.'s Mot., ECF No. 4. But when some defendants filed motions to quash or modify the subpoenas, the Court stayed the subpoenas authorized in its previous order. Order Staying Subpoenas, ECF No. 5. The Court clarified the procedure for filing motions to quash and stated that compliant motions to quash would automatically be placed under seal and would remain under seal even if they were ultimately denied. Order Denying Leave to File, ECF No. 6; Order Clarifying Filing Procedures, ECF No. 7. The Court then referred this action to Magistrate Judge Facciola for full case management. Order Referring Case, ECF No. 8.

A number of defendants filed motions to quash. On December 21, 2011, Magistrate Judge Facciola issued an order ("December 21 Order") stating that "no [defendant] will be permitted to proceed any further in this case without identifying himself or herself" because "[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information." December 21 Order, ECF No. 18, at 2. Magistrate Judge Facciola ordered defendants who had filed motions to quash to either let their motions be placed on the public docket or withdraw their motions, and held that "any future motions received from John Does seeking to proceed anonymously will be denied." Id. at 2-3 (emphasis omitted).

In response to the December 21 Order, several movants indicated their choice to have their motions to quash placed on the public docket and their identities revealed. Mem. Op., ECF No. 49, at 3. Sealed motions were to be filed publicly on February 1, 2012. Just before this date, however, on January 30, 2012, EFF moved for emergency stay of the December 21 Order and for leave to file an amicus curiae brief seeking reconsideration of that order. Mot. for Emergency Stay and for Leave to File Br. Seeking Recons., ECF No. 30 ("EFF Mot."). EFF directed its motion to this Court rather than to Magistrate Judge Facciola. Id.

Magistrate Judge Facciola denied all pending motions to quash on August 13, 2012. See Mem. Op., ECF No. 49.; Order Denying Mots. to Quash, ECF No. 50. Noting that EFF's motion was not yet resolved, Magistrate Judge Facciola, as a courtesy to this Court and "without retreating from [his] view that the movants cannot proceed anonymously," ordered that all motions to quash be placed under seal, pendent lite, until this Court ruled on EFF's motion. Mem. Op., ECF No. 49, at 4. This Court will now address EFF's pending motion and the issue of defendants' ability to proceed anonymously.


I. Motion for Leave to File an Amicus Curiae Brief

"An amicus curiae, defined as 'friend of the court,' does not represent the parties but participates only for the benefit of the Court." United States v. Microsoft Corp., No. 98-1232, 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002). Hence, it is solely within the Court's discretion to determine "the fact, extent, and manner" of participation by the amicus. Id. Amicus participation is normally appropriate when (a) "a party is not represented competently or is not represented at all," (b) "the amicus has an interest in some other case that may be affected by the decision in the present case," or (c) "when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 137 (D.D.C. 2008) (quoting Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1064 (7th Cir. 1997)).

EFF has moved for leave to file based on its assertions that "no one currently before this Court represents the interests of most of the anonymous Doe Defendants" and that, given its involvement in similar copyright infringement actions filed against anonymous defendants, it can offer the Court a "unique perspective." EFF Mot. 1-3. Plaintiff opposes EFF's motion, arguing that other courts have rejected the arguments in EFF's proposed brief and that this Court should deny the motion because EFF has "no unique information or perspective" that can help the Court in this case. Pl.'s Opp. to EFF's Mot., ECF No. 31, at 3, 5.

The Court concludes that EFF's proposed brief is helpful because it raises defendants' First Amendment right to anonymous speech, an issue not developed fully in the motions to quash filed by defendants nor discussed in the Magistrate Judge's December 21 Order.*fn1 Because defendants' "First Amendment rights must be considered before the Court allows the plaintiff[] to override the putative defendants' anonymity by compelling the production of these defendants' identifying information," the Court will grant EFF's motion for leave to file and consider EFF's First Amendment arguments. See Call of the Wild Movie, LLC v. Does 1 -- 1,062, 770 F. Supp. 2d 332, 350 (D.D.C. 2011).

II. Motion for Emergency Stay and Reconsideration

EFF asks this Court to stay and reconsider the December 21 Order and require that the sealed motions to quash remain under seal. EFF argues that the December 21 Order did not consider defendants' First Amendment right to anonymous speech and, by requiring defendants to file their motions to quash publicly or withdraw their motions, erroneously foreclosed defendants from ...

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