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Call of the Wild Movie, LLC v. Does 1-1,062: Federal Court Upholds Subpoenas Compelling ISP to Identify Over 1000 Alleged File-Sharers

Copyright Commentary First Amendment

Call of the Wild Movie, LLC v. Does 1-1,062, 2011 U.S. Dist. LEXIS 29153 (D.D.C. March 22, 2011)

Memorandum Opinion hosted by

In two copyright cases, Judge Beryl A. Howell of the United States District Court for the District of Columbia denied Time Warner Cable’s (“TWC’s”) motions to quash subpoenas compelling the identification of subscribers associated with allegedly infringing IP addresses. In a third case, the court granted TWC’s motion on procedural grounds but permitted the plaintiff ten days to re-issue the subpoena.

The court rejected TWC’s claim of “undue burden,” finding that TWC failed to demonstrate hardship sufficient to outweigh the information’s “critical” value to the plaintiffs’ cases. The court additionally rejected three arguments submitted in amicus briefs. Considering judicial efficiency, the potential for prejudice, and the alleged relationship among defendants, the court ruled that defendants were not improperly joined as of this “nascent” stage in the case. The court also rejected amici’s challenge to personal jurisdiction, pending additional discovery. Finally, the court ruled that defendants’ First Amendment rights to anonymity did not outweigh plaintiffs’ need for the information sought, applying a five-part test laid out in Sony Music Entm’t v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004).

Internet Cases provides an overview. The Electronic Frontier Foundation commented prior to the decision.

The three lawsuits were brought individually by motion picture copyright owners Call of the Wild Movie, LLC, Maverick Entertainment Group, Inc., and Donkeyball Movie, LLC, against 1062, 4350, and 171 unnamed defendants, respectively. Plaintiffs had acquired the IP addresses, dates, and times of multiple instances of allegedly infringing BitTorrent file-sharing activity, and the court had granted leave to subpoena TWC for the names, addresses, e-mail addresses, phone numbers, and Media Access Control numbers of subscribers associated with that activity. Claiming undue burden, TWC moved to quash the subpoenas pursuant to Federal Rule of Civil Procedure 45(c) or, alternatively, to modify the subpoenas to require lookup of only 28 IP addresses per month. The court reviewed TWC’s description of its subpoena compliance procedures and ruled that it failed to demonstrate an undue burden. The opinion noted that a substantial amount of the work had apparently already been done, that ISPs in other cases had averaged 100–300 lookups per month, that plaintiffs had offered to defray the cost, and that “without production of this information, the plaintiffs are unable to name and serve the putative defendants.”

The court also responded to amicus briefs submitted on TWC’s behalf by the Electronic Frontier Foundation, Public Citizen, the American Civil Liberties Union Foundation, and the American Civil Liberties Union of the Nation’s Capital. These amici argued that defendants were improperly joined, that the suits should be dismissed for lack of personal jurisdiction, and that the subpoenas impermissibly burdened protected speech. The court rejected the joinder argument because there were questions of law and fact common to all defendants, because joinder was unlikely to cause prejudice, and because defendants’ alleged actions arose out of the same “series of transactions or occurrences.” Discussing the “transactions or occurrences” alleged, the court noted that each BitTorrent downloader is automatically a potential uploader, making each putative defendant – at least at this “nascent stage of the case” – potentially “responsible for distributing motion pictures to the other putative defendants, who are also using the same file-sharing protocol.” Rejecting amici’s challenge to personal jurisdiction, the court noted that amici’s proposed use of “publicly available IP lookups” would reveal only defendants’ “likely” locations and thus would not definitively dispose of the question. Finally, the court rejected the First Amendment argument despite recognizing an individual right to expressive, anonymous Internet communication. The court deemed the First Amendment interest in file sharing to be “exceedingly small” and, applying the Sony Music Entm’t five-part test, found that plaintiffs’ need for obtaining the information outweighed defendants’ limited expectation of privacy.

According to the court, denying the subpoenas would have created “significant obstacles” to plaintiffs’ pursuit of the cases. The court acknowledged that the joinder and personal jurisdiction challenges could be revisited once defendants are named.

Paul Cathcart is a 1L at the Harvard Law School.