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Subpoena on ISPs for Identities of BitTorrent Users Upheld in Copyright Action

Monday, November 21, 2011

Patrick Collins, Inc. v. Does 1-11, No. 11–CV–01776, 2011 BL 287186 (D. Md. Nov. 8, 2011) Patrick Collins, Inc. v. Doe, No. 11–CV–01772, 2011 BL 287264 (D. Md. Nov. 8, 2011) In two related cases ("Collins '72" and "Collins '76"), the U.S. District Court for the District of Maryland denied motions by defendants who allegedly made unauthorized downloads of a copyrighted film to quash subpoenas seeking their identity from their Internet service providers ("ISPs"). The court held that the subpoenas did not burden defendants or violate the Electronic Communications Privacy Act, 18 U.S.C. § 2701 ("ECPA"), and that joinder of defendants was proper.

Unauthorized Downloading Alleged

In June 2011, Patrick Collins, Inc. filed complaints against 33 John Doe defendants, claiming that they used the BitTorrent file-sharing protocol to infringe Collins' copyright in a pornographic film. Collins claimed to know the Internet Protocol ("IP") address of each defendant, but not their names and other identifying information. In August 2011, the court granted Collins' motion for expedited discovery of this information through subpoenas served on the ISPs which had the identifying information associated with the IP addresses. After the court issued the order, the ISPs provided their subscribers with notice of the subpoena. Several of the anonymous defendants whose information was subpoenaed moved to quash the subpoenas on the grounds that (1) defendants were not properly joined; (2) the subpoenas burdened and harassed them; (3) the subpoenas violated the ECPA. One defendant also moved to dismiss for misjoinder and failure to state a claim.

Copyright Claim Is Sustained

Doe #3 argued that Collins failed to state a claim for copyright infringement because Collins did not have a copyright registration for the film, as required by 17 U.S.C. § 411(a). The court noted that the Supreme Court has held that registration is not necessary to bring a copyright claim in federal court. (Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1246 (2010)). According to the court, the plaintiff filed an application for registration, approval of which was still pending. While registration (or its denial) is plainly a jurisdictional prerequisite under the statute, the court wrote, the Supreme Court has held that federal district courts have subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a) in the absence of a registration. Collins '72 at 3–4. Accordingly the court held that Collins stated a claim for copyright infringement.

Joinder Is Proper

Does #3 and #11 argued, respectively, that defendants were improperly joined under Fed. R. Civ. P. 21, and therefore should be dismissed or severed from the action, and that the subpoenas should be quashed. The court noted that "there is a wealth of case law in other federal district courts supporting joinder in similar cases." Collins '76 at 2, Collins '72 at 4. The court mentioned similar cases that reached a contrary result, such as Pacific Century Int'l, Ltd v. Does 1-101, 2011 BL 179469 (N.D. Cal. Jul 8, 2011). Id. '76 at 3, id. '72 at 4. For a discussion of this case, see Magistrate in BitTorrent Cases Severs Doe Defendants on Basis of Misjoinder, Finds BitTorrent Users Who Download the Same Copyrighted Work Do Not Necessarily Act in Concert, Bloomberg Law Reports – Technology Law, Vol. 3, No. 16 (July 21, 2011). As the court explained, permissive joinder of defendants under Rule 20(a)(2) provides that
Persons ... may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.
Id. '76 at 3, id. '72 at 5. According to the court, many courts have held that "logically related" events underlying a legal cause of action generally comprise a transaction or occurrence. Id. '76 at 3, id. '72 at 5 (citing Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)). The court found that the first prong of Rule 20 was satisfied because Collins alleged that each defendant participated in the same BitTorrent "swarm" that illegally distributed the movie. Collins also alleged that each defendant directly communicated with other members of the swarm, and that it was suing only defendants in the swarm; that is, defendants who shared the same unique version of the film, as shown by its cryptographic hash number. Collins further alleged that after downloading the full copyrighted work, a defendant became an "additional seed" in the swarm, and continued to distribute the file. '72 at 6. The court found that Collins sufficiently alleged that defendants used the same file-sharing device at around the same time to copy the same version of the movie, and that each defendant may have directly facilitated the download by other defendants. The court held that Collins also met the second prong of Rule 20, by asserting identical claims against the defendants. Moreover, joinder would serve judicial efficiency and benefit both parties. Accordingly joinder was proper and was not a basis to quash the subpoenas.

Subpoenas Not Burdensome on Defendants

Does #3 and #11 moved to quash the subpoenas as unduly burdensome under Rule 45(c)(3)(A)(iv). The court rejected this assertion, observing that because the subpoenas were directed to the ISPs, defendants were not required to produce any information or otherwise respond.

No Violation of ECPA

Does #3 and #11 contended that the subpoenas violated the ECPA. The court assumed that defendants were relying in part on Section 2702(a)(1), which provides that "a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service." Id. '76 at 7, id. '72 at 8. The court found this provision to be inapplicable, because Collins did not seek the contents of a communication in electronic storage, but rather defendants' names, addresses, phone numbers, e-mail addresses, and MAC addresses. The court further assumed that defendants were relying on Section 2702(a)(3), which restricts disclosure of customers' records. Defendants, however, ignored Section 2702(c)(6), which provides an exception allowing an ISP to "divulge a record or other information pertaining to a subscriber ... to any person other than a governmental entity." Id. '76 at 7, id. '72 at 8–9. As Collins was not a governmental entity, disclosure of the information was permitted under the statute, the court concluded. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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