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Malibu Media, LLC v. John Does 1-21

United States District Court, Seventh Circuit

June 6, 2013

Malibu Media, LLC,
John Does 1-21, et al.


PHILIP G. REINHARD, District Judge.

Plaintiff Malibu Media, LLC owns the copyright to many adult entertainment motion pictures. It brought this action pursuant to the Copyright Act of 1976, 17 U.S.C. ยง 101 et seq., against 21 "Doe" defendants for infringing on one of its copyrighted works, entitled "First Love." Plaintiff alleges that defendants unlawfully downloaded and distributed the motion picture by using the BitTorrent peer-to-peer sharing protocol. Counsel for Does 5, 8, and 21 (Movants) have filed appearances with this court, and now bring motions to quash the third-party subpoenas issued to their respective internet service providers, to sever for misjoinder, and to proceed anonymously. Doe 8 also brings a motion to transfer the matter to the Eastern Division of the Northern District of Illinois.


BitTorrent is a popular peer-to-peer sharing protocol that allows for the distribution of large chunks of data. Rather than downloading a file from a single source computer, BitTorrent users join a "swarm" of host computers to download and upload pieces of a single work from each other simultaneously. More specifically, one individual, the "seeder, " uploads a file containing the entire work to a "torrent site." BitTorrent causes the initial seeder's computer to send separate pieces of the file containing the work to individuals, or "peers, " seeking to download the work. Each peer receives a piece of the file, and then both transmit their portion to other peers and simultaneously download the other pieces from other peers. The peers and seeders together make up a "swarm." This process allows for the distribution of large files without placing a heavy burden on the source computer and network.

Plaintiff alleges that each defendant downloaded the BitTorrent protocol onto his computer and participated in the same swarm by directly interacting and communicating with other members of that swarm. Plaintiff alleges that the "ISP to which each defendant subscribes can correlate the Defendant's IP address to the Defendant's true identity." The plaintiff further alleges that "each Defendant had copied a piece of Plaintiff's copyrighted Work..., and therefore, each defendant was part of the same series of transactions." According to a spreadsheet and audit attached as exhibits to the amended complaint, the 21 Does individually downloaded "First Love" on dates spanning from September 5, 2012 to October 23, 2012. Plaintiff retained a company, IPP, Limited, to investigate and identify the Internet Protocol (IP) addresses that used BitTorrent to distribute plaintiff's copyrighted works. IPP discovered the 21 IP addresses of the Doe defendants.

Plaintiff filed this lawsuit on December 4, 2012 against 21 Does, and soon thereafter filed an amended complaint. Because BitTorrent allows users to upload and download anonymously, the defendants are known to plaintiff only by their individual IP addresses. On December 12, 2012, for the purpose of discovering defendants' identities and to serve process on them, plaintiff moved ex parte for leave to serve third-party subpoenas on the Internet Service Providers, (ISPs), that provided the IP addresses through which plaintiff's works were downloaded. Plaintiff's sought Doe defendants' names, geographical addresses, phone numbers, and Media Access Control address, a number unique to each computer. On December 19, 2012, Magistrate Judge P. Michael Mahoney granted the motion.

Movants have since had appearances filed by their attorneys, and now present the instant motions to quash or modify the subpoenas, sever, proceed anonymously, and transfer.


I. Motion to Quash

Movants move to quash or modify the third-party subpoenas served onto AT&T Internet Services, AT&T U-verse, and SBC Internet Services (together AT&T), the ISPs for Movants. Federal Rule of Civil Procedure 45(a) permits the issuance of documents, electronically stored information, or other tangible things that are within a person's possession, custody, or control. Malibu Media, LLC v. Does 1-14, 287 F.R.D. 513, 516 (N.D. Ind. 2012) (Cosbey, J.). A court must quash or modify a subpoena if it (1) fails to allow a reasonable time to comply; (2) requires a non-party or its officer to travel over 100 miles; (3) requires disclosure of privileged or other protected matters if no exception or waiver applies; or (4) subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(A)(i)-(iv). A court may quash or modify a subpoena if the subpoena requires the disclosure of a trade secret or other confidential research information; an unretained expert's opinion; or a non-party to incur substantial expenses to travel over 100 miles to attend trial. Fed.R.Civ.P. 45(c)(3)(i)-(iii). The party seeking to quash or modify a subpoena bears the burden of demonstrating that the information sought in the subpoena subjects a person to undue burden or requires the disclosure of privileged information. AF Holdings, LLC v. Doe, No. 12 C 4222, 2012 WL 5520861, at *1 (N.D. Ill. Nov. 13, 2012) (Darrah, J.). Ruling on a motion to quash a subpoena is within the court's discretion. Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).

The subpoenas were issued to AT&T, a non-party to this action. A party has standing to move to quash a subpoena issued to a non-party if the information sought by the subpoena is privileged, or it infringes on the party's privacy interests. Hard Drive Prods. v. Does 1-48, No. 11 CV 9062, 2012 WL 2196038, at *3 (N.D. Ill. June 14, 2012); see also United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982) (citation omitted). Here, due to the identifying information requested in the subpoenas, Movants have "at least a minimal privacy interest in the information requested by the subpoena, " which is sufficient to bring the motion to quash. Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012 WL 3717768, at *2 (N.D. Ill. Aug. 27, 2012) (Tharp, J.).

Movants first argue that plaintiff's knowledge of their identifying information would subject them "to a choice between public opprobrium and private blackmail on spurious claims." The court construes their arguments to posit that compliance with the subpoena would create undue burden. In determining whether a burden is "undue, " the court assesses whether "the burden of compliance with [the subpoena] would exceed the benefit of production of the material sought by it." Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004).

Here, complying with the subpoenas creates no burden for Movants, since the subpoenas were issued to AT&T. See Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618, at *6 (N.D. Ill. Mar. 27, 2013) (Kendall, J.) ("[b]ecause Doe 15 is not the party directed to respond to the subpoena and no action is required of him, he cannot maintain that the subpoena creates an undue burden on him."); Sunlust Pictures, LLC, 2012 WL 3717768, at *2 ("[t]he subpoena does not impose an undue burden on Doe because he is not the party directed to respond to it."); Hard Drive Prods, Inc. v. Does 1-48, No. 11-962, 2012 WL 2196038, at *3 (N.D. Ill. June 14, 2012) (Kim, J.) ("the subpoenas do not burden [defendant] because they do not require any action from the movant."); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 250 (N.D. Ill. 2011) (Castillo, J.) ("[t]he subpoena's served on Doe Defendants' ISPs do not subject the Doe Defendants to an undue burden; if anyone may move to quash these subpoenas on the basis of an undue burden, it is the ISPs themselves, as they are compelled to produce information under the subpoena."). Accordingly, Movants' claims that plaintiff's knowledge of their identifying information would subject them to embarrassment and leave them susceptible to unfair settlement negotiation tactics, even if supported, is not sufficient to quash a subpoena. Movants' concerns over privacy and the fear over unfair settlement tactics employed by plaintiff are more appropriately addressed in their motions to proceed anonymously, discussed in Section II of this Memorandum Opinion. Furthermore, Movants' motion to quash is denied to the extent that they rely on the assertion that are wrongfully accused of stealing plaintiff's content. "[G]eneral denials of liability cannot serve as a basis for quashing a subpoena." First Time Videos, 276 F.R.D. at 256.

Movants also contend that the identifying information sought by the subpoena is commercial information that may be protected under Rule 45(c)(3)(B)(i). The Seventh Circuit has held that customer lists and customer information constitute trade secrets. See Am. Family Mut. Ins. Co. v. Roth, 485 F.3d 930, 933 (7th Cir. 2007). However, Movants advance no allegation or proof that plaintiff intends to divulge the subpoenaed information for commercial purposes. Absent that, Movants' fear that disclosure of their identities to plaintiff will lead to AT&T's competitors targeting its customers is unfounded. In light of the limited information sought by ...

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