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LLC v. Doe

United States District Court, D. Minnesota

April 24, 2018

Strike 3 Holdings LLC, Plaintiff,
John Doe subscriber assigned IP address, Defendant.

          Adam Gislason, for Plaintiff



         THIS MATTER came before the undersigned United States Magistrate Judge on Plaintiff's ex parte motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference (ECF No. 5). For the reasons set forth below, Plaintiff's motion is DENIED.

         A. Background

         Plaintiff is the owner of “award winning, critically acclaimed adult motion pictures.” ECF No. 1 at ¶ 3. Plaintiff's motion pictures are distributed on the internet through various adult websites, “Blacked, Tushy, Vixen, and Blacked Raw[, ]” and are available for purchase on DVD. Id. On March 21, 2018, Plaintiff initiated this suit against the unnamed Defendant, raising one copyright infringement count under 17 U.S.C. §§ 106(1) and 501. Id. Plaintiff's Complaint alleges that Defendant, using the BitTorrent protocol, committed “rampant and wholesale copyright infringement by downloading [Plaintiff's] motion pictures as well as distributing them to others.” Id. at ¶ 4. Plaintiff claims that Defendant infringed “44 movies over an extended period of time.” Id.

         Plaintiff “only knows Defendant by his or her Internet Protocol [(“IP”)] address.” ECF No. 7 at 1. Defendant's IP address was ascertained by IPP International U.B., Plaintiff's investigator, who found that an “IP address [believed to be connected to Defendant] was illegally distributing several of [Plaintiff's] motion picturers.” Id. In the instant ex parte motion, Plaintiff seeks leave to serve “limited, immediate discovery on Defendant's [Internet Service Provider (“ISP”)] Comcast Cable Communications, LLC (“Comcast”).” Id. at 2. To that end, Plaintiff moves to serve a subpoena, pursuant to Federal Rule of Civil Procedure 45, on Comcast. Id. Plaintiff's Rule 45 subpoena “will only demand the true name and address of Defendant.” Id. Plaintiff represents that it will “only use this information to prosecute the claims made in its Complaint.” Id. Plaintiff claims that without this information, it “cannot serve Defendant nor pursue this lawsuit and protect its copyrights.”[1] Id.

         B. Legal Discussion

         Plaintiff's ex parte motion illustrates an ongoing conflict between the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, the Communications Act, 47 U.S.C. § 551, and Federal Rule of Civil Procedure 45. At the heart of this conflict is whether a copyright owner can use the federal judiciary to discover evidence about a potential, alleged infringer when the infringer's actual identity is unknown. This friction has been exacerbated by the proliferation of, beginning with Napster, peer-to-peer or file sharing computer programs.

         In 1998, Congress enacted DMCA as a legislative compromise to this conflict. DMCA permitted copyright owners to obtain and serve subpoenas on ISPs to ascertain information about an ISP subscriber alleged to be illegally transmitting copyrighted works via the internet. “DMCA was the product of lengthy negotiations between copyright owners and [ISPs]. It was designed to strike a balance between the interests of ISPs in avoiding liability for infringing use of their services and the interest of copyright owners in protecting their intellectual property and minimizing online piracy.”[2] In Re Charter Commc'n, 393 F.3d 771, 774 (8th Cir. 2005).

         DMCA permits the clerk of court for a given federal district “to issue a subpoena to a service provider for identification of an alleged infringer.” 17 U.S.C. § 512(h). However, in In Re Charter Communications, the Eighth Circuit held that DMCA's subpoena provision did not apply to a “copyright owner . . . request[ing] a subpoena for an ISP which merely acts as a conduit for data transferred between two internet users.” 393 F.3d at 776. Put differently, DMCA does not apply to the facts of the instant case because Comcast, the ISP Plaintiff seeks to subpoena, is acting only as a conduit for data transferred between two internet users. In Re Charter Communications effectively precludes an alleged infringement victim from invoking DMCA to obtain a subpoena to identify infringers using peer-to-peer file sharing.[3] 393 F.3d 777.

         In Re Charter Communications relied heavily on the D.C. Circuit's reasoning in Recording Industry Association of America v. Verizon Internet Service Incorporated, 351 F.3d 1229, 1232 (D.C. Cir .2003), cert denied, 125 S.Ct. 347 (2004). Id. In Verizon, the D.C. Circuit reasoned that it is the province of Congress, not the federal judiciary, to determine whether to amend DMCA “in order to make it fit a new and unforeseen internet architecture” and “accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology” attendant to the increased use of peer-to-peer file sharing protocols. 351 F.3d at 1238.

         Rather than invoke the direct subpoena provision of DMCA, Plaintiff here filed a lawsuit against John Doe, then filed the instant ex parte motion to serve expedited discovery on the third-party ISP, Comcast. Plaintiff is seeking to serve the subpoena under Federal Rule of Civil Procedure 45 to ascertain what it describes as Defendant's name and address.[4] However, that very requested material, disclosure of a cable subscriber's personally identifiable information, is protected under another federal law, the Communications Act. See 47 U.S.C. § 551(c). Specifically, a cable operator, such as Comcast here, “shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.” 47 U.S.C. § 551(c)(1). Furthermore, the Communications Act prohibits a cable provider from disclosing the “extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator.” 47 U.S.C. § 551(c)(2)(C)(ii)(I). Again, as is the case with DMCA, the conundrum here is that the information Plaintiff seeks through a Rule 45 subpoena poses a direct conflict between Plaintiff's property interest and Defendant's privacy protections afforded under federal law in the Communications Act. This direct conflict between DMCA and the Communications Act was argued by the parties in In Re Charter Communications. However, as the Eighth Circuit quashed the subpoena on other grounds, it never reached or resolved this issue.

         This Court concludes that the conflict between the statutes, DMCA and the Communications Act, compels it to deny Plaintiff's instant ex parte motion. As the Eighth Circuit reasoned in In Re Charter Communications, when it held that DMCA did not authorize the subpoena the district court had issued, “it is the province of Congress, not the courts, to decide whether to rewrite DMCA ‘in order to make it fit a new and unforseen internet architecture.'” 393 F.3d at 777 (quoting Verizon, 351 F.3d at 1238).

         This Court is mindful of footnote three in In Re Charter Communications. 393 F.3d at 777 n.3. In dicta, the Eighth Circuit suggested that the procedure adopted here, use of a Rule 45 subpoena in a John Doe lawsuit, is an appropriate work-around of its holding that DMCA does not apply to the subpoena it quashed. The dicta in footnote three, however, ignores the requirements of Federal Rule of Civil Procedure 10(a) that a complaint must name all of the parties. Moreover, footnote three is not a holding. In this Court's view, footnote three does not compel it to permit the issuance of the requested subpoena here. Finally, that the Eighth ...

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