The Northern District of Illinois Denies Motion to Compel for Subpoenas Seeking Non-Party IP Address Information
By Dorothy Du – Edited by Julie Dorais
Pacific Century International, Ltd. v. John Does 1-37, No. 12 C 1057 (N.D. Ill. March 30, 2012)
The U.S. District Court for the Northern District of Illinois granted in part and denied in part plaintiffs’ motion to compel ISPs’ compliance with subpoenas for identifying information associated with IP addresses in a copyright infringement action against BitTorrent users.
In an opinion by Chief Judge Holderman, the court granted plaintiffs’ motion to compel ISPs to comply with subpoenas for information about Doe defendants’ IP addresses, but denied the motion in cases in which the information sought related to non-party IP addresses. The court held that subpoenas for information pertaining to non-party IP addresses are not “reasonably calculated to lead to the discovery of admissible evidence” as required by Fed. R. Civ. P. 26(b)(1), and that as such, the subpoenas would impose an “undue burden” on ISPs under Fed. R. Civ. P. 45(c)(3)(A)(iv). Pacific Century International, Ltd. v. John Does 1-37, No. 12 C 1057, slip op. at 5, 8, 9 (N.D. Ill. March 30, 2012). Moreover, the court rejected plaintiffs’ attempt to justify the subpoenas on claims of conspiracy among the Doe defendants because the plaintiffs failed to plead the existence of an agreement among the defendants. According to the court, plaintiff copyright owners were not seeking information for the purpose of litigating the copyright action at hand but rather were attempting to use discovery improperly in order to identify BitTorrent users for future copyright infringement suits or threats of suits.
Techeye praises the decision for setting back copyright trolling campaigns by Big Content. ArsTechnica explains that the decision signals judicial resistance to copyright holders’ use of conspiracy theory to gather information about ISP subscribers in order to “extort settlements.” Last week, ArsTechnica reported on two other rulings in similar cases in Florida that suggest that plaintiffs in copyright actions are likely to lose whenever ISPs raise objections to subpoenas that are “fishing expeditions” against their customers.
Six cases with similar facts were consolidated for the opinion. Id. at 2. The plaintiffs in each case were producers of pornographic videos who alleged that John Doe defendants infringed their copyright by reproducing and distributing a pornographic video through a BitTorrent file sharing protocol. Id. Plaintiffs, knowing only the IP address of each file sharer, were granted subpoenas requiring ISP’s to produce identifying personal information corresponding to each IP address. Id. at 4-5.
The court denied the motion to compel the ISPs’ compliance in five of the six cases. In so holding, the court recited a common tactic used by plaintiffs’ firms in copyright infringement actions: (1) The firms sue thousands of Doe defendants in single copyright actions, (2) they obtain ISP customers’ identities, and (3) they threaten the identified individuals into settling. Id. at 6. The court noted that courts have increasingly quashed subpoenas for information about Doe defendants from ISPs for lack of personal jurisdiction and improper joinder. Id. at 7. The court expressed its suspicion that the plaintiffs in the cases at bar are attempting to circumvent these legal issues by suing a single defendant and then subpoenaing ISPs for information about non-party IP addresses on the theory that the non-party users engaged in a “conspir[acy] to infringe” with the defendants. Id. at 9. The court reasoned that the information sought was not reasonably calculated to lead to admissible evidence because the BitTorrent users have no connection to each other aside from downloading the same file and because the plaintiffs failed to plead an agreement among the alleged conspirators. Id. at 9-10.
In the sixth and last case, the court granted the motion to compel because the subpoena sought a defendant’s identity, because it imposed a minimal burden on the ISP as it was for a single individual, and because the ISP would give the individual an opportunity to object to the subpoena. Id. at 13.
This case addresses attempts by copyright holders in file-sharing cases to allege conspiracy in order to get around the legal obstacles of personal jurisdiction and joinder involved in suing large numbers of defendants in a single suit. It is the latest case to demonstrate judicial resistance to the copyright trolling business model of obtaining potential infringers’ identities, not to sue them, but rather to win settlements using threats of litigation.
Dorothy Du is a 2L at Harvard Law School.