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Hard Drive Productions v. Does 1-48

June 14, 2012

HARD DRIVE PRODUCTIONS, PLAINTIFF,
v.
DOES 1-48, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

In this copyright-infringement suit, Hard Drive Productions ("Hard Drive"), a self-described "producer of adult entertainment content," alleges that 48 defendants illegally downloaded one of its copyrighted videos. (R. 1, Compl. ¶ 3.) Currently, Hard Drive knows the defendants only by their Internet Protocol ("IP") addresses. After Hard Drive issued subpoenas to the defendants' internet service providers ("ISPs") to identify the owners of the IP addresses, two of the Doe defendants filed motions to quash. For the following reasons, the motion to quash filed by the Doe defendant assigned to IP number 67.186.111.25, (R. 9), is stricken, and the motion and supplemental motions to quash filed by the Doe defendant assigned to IP number 99.141.128.18, (R. 14; R. 19), are denied.

Background

In its complaint, Hard Drive alleges that each of the 48 defendants violated its copyright by intentionally downloading one of its copyrighted videos, "Amateur AllureDylan," through a file-sharing method called the BitTorrent protocol. (R. 1, Compl. ¶¶ 3, 14, 28.) According to Hard Drive, the BitTorrent protocol is a decentralized method of distributing data that allows individual users to share data among themselves. (Id. ¶ 17.) The protocol involves breaking a single large file into many small pieces that can be redistributed quickly and reliably. (Id.) The people who download a file are called "peers" and a group of peers who download and distribute a file is called a "swarm." (Id. ¶ 18.) To obtain a file from the BitTorrent protocol, a peer must locate the file and load it into a computer program called the "BitTorrent client," which automatically attempts to connect with a server called the "tracker." (Id. ¶¶ 18-19.) The tracker-which stores a list of peers in a swarm-responds with the peer list and the BitTorrent client connects to those peers to begin downloading data and distributing it among the swarm. (Id.) After the download, the program will continue to distribute data to other peers in the swarm until the user or the BitTorrent client disconnects. (Id. ¶ 19.)

Hard Drive alleges that it was able to observe and create a log documenting the defendants' activities in downloading and distributing its work through the swarm specific to Amateur Allure-Dylan. (R. 1, Compl. ¶ 29.) The log documents the defendants' IP addresses as well as the date and time of their activity in the swarm. (Id.) Based on that log, the assigned district judge granted Hard Drive's motion for leave to take expedited discovery in the form of subpoenas issued to the ISPs associated with the defendants' IP addresses.

(R. 8.) The subpoenas direct the ISPs to provide the name, addresses, telephone numbers, email addresses, and Media Access Control addresses for all of the people associated with the accused IP addresses. (Id.)

Shortly after Hard Drive issued the subpoenas, two of the Doe defendants filed motions to quash. The first was filed anonymously by a pro se defendant associated with IP number 67.186.111.25 ("the first defendant"). He or she argued that the subpoena violates his or her First Amendment right to engage in free and anonymous speech and places an undue burden on the targeted ISP, Comcast Cable Holdings, Inc. ("Comcast"). (R. 9, Mot.

¶¶ 4-5.) The second motion to quash was filed by an attorney representing the Doe defendant associated with IP number 99.141.128.18 ("the second defendant"). In his motion, the second defendant disclaims liability, asserting that he does not download movies, that adult videos conflict with his Christian morals, and that anyone within range of his wireless internet connection-which was unprotected by a password at the relevant time-could have engaged the BitTorrent protocol using his IP address. (R. 14, Mot. ¶¶ 4-6, 15.)

After Hard Drive responded to the second defendants' motion, he filed what he styled as a "Supplemental Motion to Quash Subpoena," arguing that he has standing to challenge the subpoena based on his First Amendment right to privacy and submitting evidence that he says establishes that the current lawsuit is "part of an overall pattern or business plan of extorting 'settlement' money from identified Does," regardless of their guilt. (R. 19, Supp. Mot. at 3-4.) Specifically, the second defendant's attorney, Kevin Guynn, attached a declaration swearing that he offered to have a court-appointed computer expert analyze his client's computers to confirm whether the allegedly downloaded videos are present there, but that Hard Drive's attorney declined. (R. 19-1, Ex. 2, Guynn Decl. ¶¶ 2-4.) According to Guynn, Hard Drive's attorney said it would not agree to dismiss the second defendant unless he payed $3,400. (Id. ¶ 6.) Guynn states that the attorney warned that if this court denied the motion to quash, "the required payment for settlement would go up." (Id. ¶ 7.)

On May 22, 2012, the assigned district judge referred all of the discovery motions in this case to this court. (R. 22.) This court gave the Doe defendants until June 8, 2012, to file their replies in support of the pending motions to quash. (R. 24.) The second defendant filed a reply brief in support of his motions (R. 26), but the first defendant did not.

Analysis

The procedure governing the issuance of subpoenas is set forth in Federal Rule of Civil Procedure 45. Ott v. City of Milwaukee, __ F.3d __, 2012 WL 1914090, at *3 (7th Cir. May 29, 2012). Rule 45(c)(3)(A) states that the court must quash or modify a subpoena if it "requires disclosure of privileged or other protected matter" or if it "subjects a person to undue burden." The party seeking to quash a subpoena has the burden of demonstrating that it meets these requirements. See Pacific Century Int'l, Ltd. v. Does 1-37, __ F.Supp.2d __, 2012 WL 1072312, at *2 (N.D. Ill. March 30, 2012).

I. The First Defendant's Motion to Quash Subpoena Issued to Comcast

The first defendant's motion to quash faces a glaring procedural hurdle-it violates the stricture against anonymously filed motions. The defendant, who is not represented by counsel, submitted his motion under the name "Internet Protocol 67.186.111.25," and in the signature line, left only an "x." Federal Rule of Civil Procedure 11(a) states that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented." The signator must also include his address, email address, and telephone number. Id. The rule directs that the "court must strike an unsigned paper" unless the omission is promptly cured. Id. The "central purpose of Rule 11 ...


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