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Judge Quashes Recording Industry Subpoena Seeking the Identities of Three Boston University “John Does”
By Jamie Wicks – Edited by Jon Choate

London-Sire Records, Inc. v. Does 1-4
D. Mass., No. 1:04-cv-12434
Court Order (hosted by Ray Beckerman)

On November 24th, Judge Nancy Gertner of the U.S. District Court for the District of Massachusetts rebuffed an attempt by major recording industry companies to force a university to reveal the identity of individuals who shared music through online peer-to-peer networks. Judge Gertner quashed a subpoena in London-Sire Records v. Does 1-4, a copyright infringement case in which the plaintiffs had served subpoenas on a number of internet service providers, largely colleges and universities, requiring them to divulge individual users’ identities based on their IP addresses.

Boston University wrote a letter to the court on September 23, 2008, stating that it could not positively identify three of the IP address users.  Judge Gertner treated the letter as a motion to quash the subpoena, and found that “the University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty.”  In quashing the subpoena, she expressed concern that “compliance with the subpoena . . . would expose innocent parties to intrusive discovery.”

The court’s order to quash the subpoena is available here.  Jacqui Cheng of Ars Technica provides background on the case. One Slashdot contributor notes that the order will provide a lesson to University IT departments served with similar subpoenas: if they are simply honest about the difficulty of identifying IP address users, the subpoenas may be quashed.  A P2PNet commenter suggests the order may “represent a death knell” to the music industry’s attempt to use universities as “copyright cops.”  A Chronicle of Higher Education writer wonders if the holding signifies that IP addresses might no longer be legally synonymous with personal identities.

While the court did not provide detailed legal analysis in its recent order, it indicated that it employed the test described in its March order (London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (2008)) regarding motions to quash similar subpoenas in the same litigation.  In the earlier order the court expressed concern that the subpoenas would interfere with the defendants’ anonymity, which is at least minimally protected under the First Amendment.

To balance the interests of the parties, the court adopted the test set out by the court in Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004).  This test considers five factors:

(1) a concrete showing of a prima facie claim of actionable harm, (2) specificity of the discovery request, (3) the absence of an alternative means to obtain the subpoenaed information, (4) a central need for the subpoenaed information to advance the [plaintiffs’] claim, and (5) the [defendants’] expectation of privacy.

In her March order, Judge Gertner granted certain motions to quash the subpoenas after implementing this test.  However, she instructed the plaintiffs that they could renew their motions for expedited subpoenas after furnishing the court with further information, which would allow it to better weigh the factors.  In her November 24th order, on the other hand, Judge Gertner did not invite a renewed request.

Judge Gertner’s March order was also notable for its rejection of the plaintiffs’ argument that their exclusive right under § 106(3) of the Copyright Act to distribute their works was violated when the defendants “made available” copies of their works for download.  The judge rejected this “making available” argument, instead agreeing with amicus Electronic Frontier Foundation that the defendants could not be liable for violating the plaintiffs’ distribution rights unless a “distribution” actually occurred.

While some commentators suggest that this holding might have significant implications for the recording industry’s numerous copyright infringement lawsuits, other recent court decisions indicate that this matter is not settled.  For instance, in April, a magistrate judge in West Virginia ordered Marshall University to reveal the identities of its students accused of copyright infringement, even though Marshall University argued that it could not confidently identify the correct students due to shared IP addresses and other technical limitations.

Posted On Nov - 29 - 2008 Comments Off

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