UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HARD DRIVE PRODUCTIONS, INC.,
Plaintiffs,
v. Civil Action No. 11-1741 (JDB/JMF)
DOES 1 – 1,495,
Defendants.
MEMORANDUM OPINION
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.
BACKGROUND
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
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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).
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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.
DISCUSSION
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
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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.1 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
1
See Mots. to Quash, ECF Nos. 19, 20, 21, 22, 36, 38; December 21 Order, ECF No. 18.
One defendant argues in her motion to quash that her identity should not be revealed because the
First Amendment protects her right to anonymous speech. Mot. to Quash, ECF No. 36, at 3. But
in contrast to EFF's proposed brief, see Proposed Amicus Br., ECF No. 30-1, at 3-8 ("EFF Br."),
defendant's motion does not develop her First Amendment argument in the context of this
copyright infringement action based on BitTorrent file sharing, see Mot. to Quash, ECF No. 36,
at 3-4.
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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 challenging the subpoenas on First Amendment grounds without revealing their identities.
EFF Br. 3.
The First Amendment protects the right to speak anonymously, and this protection
extends to anonymous speech on the Internet. See Call of the Wild, 770 F. Supp. 2d at 348;
Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 131 (D.D.C. 2009). But the First Amendment's
protection is not absolute and does not extend to copyright infringement. Call of the Wild, 770
F. Supp. 2d at 348-49 ("Copyright infringement is not protected by the First Amendment."); Sony
Music Entm't Inc. v. Does 1 – 40, 326 F. Supp. 2d 556, 562-63 (S.D.N.Y. 2004); see also Harper
& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555–57, 569 (1985).
EFF argues that First Amendment protection extends to anonymous file sharing using the
BitTorrent protocol, even if such file sharing is alleged to infringe copyright. EFF Br. 4.
Because BitTorrent file sharing is, "on some level," expressive activity, the Court agrees that
defendants are entitled to "some First Amendment protection of their anonymity." Call of the
Wild, 770 F. Supp. 2d at 349-50; see also Sony, 326 F. Supp. 2d at 564 ("Arguably, . . . a file
sharer is making a statement by downloading and making available to others copyrighted music
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without charge and without license to do so. Alternatively, the file sharer may be expressing
himself or herself through the music selected and made available to others.").
Here, however, where defendants' expressive activity is alleged to infringe plaintiff's
copyright, defendants' First Amendment right to anonymity is "exceedingly small." See Arista
Records LLC v. Does 1 – 19, 551 F. Supp. 2d 1, 8 (D.D.C. 2008); see also In re Verizon Internet
Servs., Inc., 257 F. Supp. 2d 244, 260 (D.D.C.) ("[T]he Court concludes for present purposes that
there is some level of First Amendment protection that should be afforded to anonymous
expression on the Internet, even though the degree of protection is minimal where alleged
copyright infringement is the expression at issue."), rev'd on other grounds, Recording Indus.
Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1233 (D.C. Cir. 2003).
To determine whether defendants' motions to quash should remain under seal, the Court
must weigh plaintiff's need for defendants' identities against defendants' limited First
Amendment right to anonymous file sharing. EFF argues that the Court should adopt the five-
part test set forth in Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61 (N.J. Super. Ct. App.
Div. 2001). EFF Br. 5-6. But Dendrite concerned allegedly defamatory comments posted on an
Internet bulletin board, not, as here, the "'less expressive act'" of file sharing using the BitTorrent
protocol. See Call of the Wild, 770 F. Supp. 2d at 351 n.7 (quoting Sony BMG Music Entm't v.
Doe, No. 5:08-109, 2009 WL 5252606, at *7 n.14 (E.D.N.C. Oct. 21, 2009)). Accordingly, like
courts in this and other jurisdictions, the Court declines to apply the Dendrite test and instead
applies the five-part test set forth in Sony Music Entertainment, Inc. v. Does 1 – 40, 326 F. Supp.
2d at 564-65, because it concludes that the Sony test is better suited to the file-sharing context
than is the Dendrite test. See Call of the Wild, 770 F. Supp. 2d at 350-51 & n.7 ("The First
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Amendment interests implicated in defamation actions, where expressive communication is the
key issue, is considerably greater than in file-sharing cases."); see also, e.g., Arista Records LLC
v. Doe 3, 604 F.3d 110, 118-19 (2d Cir. 2010); Arista Records, 551 F. Supp. 2d at 8-9; London-
Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 & nn.12-13 (D. Mass. 2008).2 The Sony
test balances the following five factors: (1) the plaintiff's concrete showing of a prime facie claim
of copyright infringement; (2) the specificity of the plaintiff's discovery request; (3) the absence
of alternative means to gain the information sought; (4) the plaintiff's need for the information to
advance its claim; and (5) the defendants' expectation of privacy. 326 F. Supp. 2d at 565.
Each of the Sony factors supports Magistrate Judge Facciola's conclusion that defendants
may not proceed anonymously on their motions to quash.3
First, plaintiff has made a concrete showing of a prima facie claim of copyright
infringement. To establish copyright infringement, a plaintiff must show "(1) ownership of a
valid copyright, and (2) copying of constituent elements of the work that are original." Feist
Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Plaintiff has alleged that it holds
"the pertinent exclusive rights under copyright in the United States" in the motion picture
allegedly downloaded and distributed by defendants, and has given the copyright registration
number for its motion picture. Compl. ¶¶ 7, 10. Plaintiff has further alleged that each defendant,
without plaintiff's permission or consent, distributed its copyrighted motion picture to the public,
2
In arguing for application of the Dendrite test here, EFF cites Sinclair v.
TubeSockTedD, 596 F. Supp. 2d at 132. EFF Br. 5. In Sinclair, a defamation case, this Court
discussed, but did not adopt, the Dendrite test. Id.
3
In this First Amendment context, however, this Court does not adopt the Fourth
Amendment "reasonable expectation of privacy" test that Magistrate Judge Facciola applied in
his December 21 Order.
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"including by making available for distribution to others," in violation of plaintiff's exclusive
rights of reproduction and distribution. Id. ¶ 12. Plaintiff has supported these allegations by
listing the date and time of each allegedly infringing act and the IP address assigned at the time
of each such act, id. Ex. A, and by submitting a declaration from technician Peter Hansmeier
explaining the process of identifying defendants' allegedly infringing acts, Hansmeier Decl., ECF
No. 3-1, at 5-8. Accordingly, plaintiff has made a prima facie showing of copyright
infringement.
Second, plaintiff's discovery request is sufficiently specific to gain information needed to
identify defendants "but no more." See London-Sire, 542 F. Supp. 2d at 178. The Court's order
granting plaintiff leave to serve subpoenas on ISPs stated that such subpoenas could "seek
information sufficient to identify each defendant, including name, address, telephone number,
email address, and media access control address," and that "[a]ny information disclosed to Hard
Drive in response to the Rule 45 subpoenas may be used by Hard Drive solely for the purpose of
protecting its rights as set forth in the Complaint, and Hard Drive may not publicly disclose the
names of the defendants." Order Granting Pl.'s Mot., ECF No. 4, at 2. Hence, plaintiffs'
discovery request is appropriately limited in scope and usage.
Third, subpoenaing the ISPs appears to be the only way for plaintiff to obtain defendants'
identities, because only the ISPs have records of the IP addresses assigned to users on the date
and at the time of each allegedly infringing act. See Hansmeier Decl. ¶ 21 ("The only party from
whom Plaintiff can discover a Defendant's actual name and address is the Defendant's Internet
service provider.").
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Fourth, without defendants' identifying information, plaintiff cannot name or serve
process on defendants and hence cannot advance its claims of copyright infringement. See id.
Fifth, as Magistrate Judge Facciola concluded in the December 21 Order, defendants have
little expectation of privacy in their subscriber information that they have given to their ISPs.
See December 21 Order, ECF No. 18, at 2 (citing United States v. Christie, 624 F.3d 558, 573
(3d Cir. 2010); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); Achte/Neunte Boll Kino
Beteiligungs Gmbh & Co. v. Does 1 – 4,577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010) ("[C]ourts
have held that Internet subscribers do not have an expectation of privacy in their subscriber
information as they already have conveyed such information to their Internet Service
Providers.")); cf. Sony, 326 F. Supp. 2d at 566 (finding that defendants had "minimal expectation
of privacy" because ISP's terms of service prohibited copyright infringement and warned users
that law may require disclosure of their identifying information). Moreover, as explained above,
defendants' First Amendment right to anonymity is minimal in this setting.
Because each of the five Sony factors supports disclosure of defendants' identities, the
Court finds that plaintiff's need for defendants' identities to pursue its copyright infringement
claims outweighs defendants' First Amendment interests in anonymity. Accordingly, EFF's
motion for emergency stay and reconsideration will be denied, and all sealed motions to quash
will be ordered unsealed.4
4
EFF also argues that this Court should quash plaintiff's subpoenas to the ISPs and stay
discovery based on lack of personal jurisdiction and improper joinder. EFF Br. 3, 8-17.
However, these issues were properly decided by Magistrate Judge Facciola in his August 13,
2012 Memorandum Opinion and Order. See Mem. Op., ECF No. 49; Order, ECF No. 50. No
review of that decision was sought from this Court, and hence this Court need not reach these
issues at this time.
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CONCLUSION
For the foregoing reasons, EFF's motion for leave to file will be granted, EFF's motion for
emergency stay and reconsideration will be denied, and all sealed motions to quash will be
ordered unsealed. A separate Order accompanies this opinion.
/s/ John D. Bates
JOHN D. BATES
United States District Judge
Dated: September 26, 2012
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