When an anonymous poster takes action online, an IP address must be used and is associated with that individual poster. In the event that the anonymous poster is engaged in online defamation or copyright infringement, the harmed party must first identify the anonymous poster in order to proceed with a lawsuit. The harmed party, or Plaintiff, will file a lawsuit against a John Doe. We will then seek expedited discovery so as to subpoena information associated with that IP address from the internet service provider, such as a cable company. The internet service provider will then provide notice to the owner of that IP address. That notice will confirm that it will be disclosing the information associated with the Ip address, such as name and address, if a motion to quash is not filed with and granted by the court handling the underlying lawsuit filed by the plaintiff.
Malibu Media, who has been identified in various online sources as a copyright troll, is one such party that regularly deals with anonymous actors online. In particular, Malibu Media is the owner of various adult related copyright works. When such works are allegedly infringed, Malibu Media files a lawsuit against a John Doe, seeks expedited discovery, subpoenas the internet service provider, and then hopefully proceeds with action against an identified person. Some individuals choose to file a motion that quashes a subpoena. One such recent case in the United States District Court for the District of Colorado, as decided on July 14, 2013, the court entertained three reasons why the motion to quash should be granted.
First, it fails to allow a reasonable time to comply. Second, it requires excessive travel by a non-party. Third, it requires disclosure of privileged or other protected matter, if no exception or waiver applies. Fourth, subjects a person to undue burden. Those are the only grounds listed under Federal Rule of Civil Procedure 45 as it relates to reasons to quash a subpoena. The John Doe defendant in the above identified matter sought the courts quashing of the subpoena on three separate basis, including plaintiff's litigation tactics, defendants inability to challenge the courts order permitting early discovery, and defendants First Amendment right to anonymous file sharing. The court considered each of these arguments. It first noted that a plaintiff has a constitutional right to file a lawsuit to engage in discovery to determine if a defendant or someone using a defendants IP address infringed on a protected work so long as the plaintiff had a good faith basis in doing so under Rule 11, which refers to Federal Rules of Civil Procedure and contains sanctions for frivolous or unfounded filings. Despite acknowledging that Malibu Media has been argued to be and identified as a copyright troll, the court recognized that it has the same right as all the other litigants to settle or dismiss its claims before engaging and discovering prior to filing any dispositive motions. Therefore, court declined to quash the subpoena based upon litigation tactics alleged in the motion to quash.
The court also quickly disposed of the defendants argument that the subpoena should be quashed due to defendants inability to challenge the courts order permitting early discovery. The court recognized that the defendants anonymity was the exact reason why the plaintiff sought early discovery and one of the few reasons that early discovery is permitted. Put simply, deemed the argument unreasonable that defendants failure to participate in the process intended to discover his identity could be used as a basis for restricting the subpoena or other discovery.
Finally, the court considered whether the defendants interest in anonymous file sharing justifies quashing the subpoena. While anonymous internet speech, including file sharing, enjoys some protection under the First Amendment, such protection is not absolute, said the court. As a category, copyright infringement is not protected by the First Amendment. That said, courts have recognized that defendants right to remain anonymous must give way to plaintiffs right to use the judicial process to pursue what appear to be meritorious copyright infringement claims. In analyzing the issue, the court considered what are known as The Sony Music Factors, including whether the plaintiff has made a prima facie case for infringement, the specificity of information sought from the internet service provider, a lack of alternative means of obtaining that information, a central need for the information in order to bring the claim, and the expectation of privacy held by the objecting party.
The court first recognized that a prima facie claim of copyright infringement exists because the plaintiff alleged ownership of valid copyright, including a copyright registration with the US Copyright office, as well as original works of authorship in each of the seven films at issue. Second, the information sought from the ISP was specific enough, including defendants name, address, and telephone number. Third, the court recognized that a subpoena is the first step and that no other means are available to identify the defendant. In doing so, the court noted that this information is not guaranteed to produce the identity of the infringer, the court could not identify any other reasonable way of discovering the infringer other by permitting the discovery into the identity of the defendant, who has not disputed that he owns the IP address through the alleged infringement occurred. Fourth, there is a central need for the subpoenaed information. The court recognized that plaintiffs providing an exculpatory evidence request with its complaint demonstrates steps that it may take to get information from the internet subscriber to the alleged infringer, which further weighs in favor of discovery under the fourth factor. Fifth, and finally, the court chose to recognize that a file sharers First Amendment right to anonymity is exceedingly small. It went on to state that, "It is hard to understand just what privacy expectation a file sharing defendant has after essentially opening up his or her computer to the world". Thus, the court found the information sought in the subpoena is both relevant and necessary to the plaintiffs interest in vindicating its valid copyrights through this litigation and the discovery sought did not violate defendants First Amendment right to anonymous file sharing, which is too slight to overcome any such discovery interest.
More and more decisions are being issued throughout the country as it relates to the quashing of subpoenas related to identifying the owner of an IP address in cases involving alleged copyright infringement. A copyright attorney with experience in this area can help advise as to the likelihood of a successful motion to quash, as well as other efforts in the event that you receive notice from an ISP that your identity is to be revealed pursuant to a subpoena.