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IP/Entertainment Case Law Updates

Arista Records LLC v. Doe 3

Second Circuit affirms district court’s denial of a motion to quash a subpoena served on the Internet service provider of an anonymous defendant; court rejects defendant’s argument that his First Amendment right to anonymity outweighs plaintiffs’ right to obtain defendant’s identity from his ISP.

Plaintiff record companies filed suit against 16 defendants for copyright infringement based on the defendants’ alleged use of peer-to-peer networks to download and distribute the plaintiffs’ copyrighted works. The plaintiffs sought authorization from the court to serve a subpoena on the defendants’ common Internet service provider (ISP), the State University of New York at Albany (SUNYA), for disclosure of each defendant’s name and email address. Some of the defendants, including Doe 3, moved to quash the subpoena on the grounds that the First Amendment affords a qualified right to use the Internet anonymously.

The district court referred the defendants’ motion to quash to a magistrate judge who denied the motion. The defendants objected to the magistrate judge’s decision on both procedural and substantive grounds; the district court reviewed the magistrate judge’s decision and denied the defendants’ motion to quash. Defendant Doe 3 appealed. The defendant argued primarily that his First Amendment right to anonymity can be overcome only “by a substantial and particularized showing” sufficient to “plead a prima facie case of copyright infringement” and that the complaint falls short of that showing. Specifically, the defendant argued that the plaintiffs must state, on personal knowledge, a specific claim for copyright infringement against each and every defendant. The defendant also argued that the magistrate judge lacked jurisdiction to decide the motion to quash, contending it was a “dispositive” motion, and that the district court’s review of the magistrate judge’s decision was procedurally flawed.

Finding “no merit in Doe 3’s contentions,” the U.S. Court of Appeals for the Second Circuit affirmed the district court’s denial of the motion to quash. The court first addressed the defendant’s argument that the magistrate judge lacked jurisdiction to decide the motion to quash because the motion “while styled as one to quash a subpoena, actually challenged the legal sufficiency of the complaint in the nature of a motion [to dismiss] . . . [and] as such it is dispositive.” The defendant argued that the district court should have reviewed the magistrate judge’s decision de novo. Under Fed. R. Civ. P. 72(a), a district court may designate a magistrate judge to hear and decide a pretrial matter that is not dispositive of a party’s claim or defense. Rule 72(a) also provides that a district court must modify or set aside any part of the magistrate judge’s order that is clearly erroneous or contrary to law. The Second Circuit held that the motion to quash was not a dispositive motion, because it could have been denied without addressing the sufficiency of the complaint, and noted that the district court stated that it would have reached the same conclusion the magistrate judge did if the court had conducted a de novo review.

Turning to the defendant’s substantive challenge to the district court’s denial of the motion to quash, the court held there was no abuse of discretion on the district court’s part. The court acknowledged that the U.S. Supreme Court has recognized that the First Amendment provides protection for anonymous speech, citing Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), but the First Amendment does not provide a license for copyright infringement, citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). The Second Circuit stated the appropriate test for balancing the First Amendment’s protection of anonymity against copyright rights is the five-part test established in Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (SDNY 2004). The five factors are: (1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm; (2) the specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) the need for the subpoenaed information to advance the claim; and (5) the objecting party’s expectation of privacy. According to the Second Circuit, the defendant did not object to the district court’s reliance on this test; instead, the defendant contended that the court should have found that the plaintiffs did not make a “particularized showing” as required by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which, according to the defendant, imposed a heightened pleading standard.

The Second Circuit rejected the defendant’s argument, noting that the Twombly court stated “[i]n reaching this conclusion, we do not apply any ‘heightened’ pleading standard.” According to the Second Circuit, Twombly and Iqbal require factual amplification where needed to render a claim plausible, but those decisions do not require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible. The court also stated that the defendant’s claim that the plaintiffs’ showing was vague and conclusory was “even less meritorious.” The court pointed out that the plaintiffs attached an Exhibit A to the complaint which identified, on a defendant-by-defendant basis, the IP address, date and time, and list of copyrighted recordings that each defendant downloaded or distributed to the public. The court criticized the defendant for not mentioning Exhibit A in his appeal and for quoting from the complaint while omitting phrases that provided detailed factual information about the defendants’ activities.

The court did state that it is skeptical of the magistrate judge’s view that “any pretext of privacy” on the part of a computer owner is “render[ed] void” simply by “the notion [that he] allow[s] others to have access to [his] database by virtue of the Internet in order to pluck from a computer information and data that the computer owner or user wishes to share.” As the Second Circuit stated, “[t]he privacy claimed here is not for the information that the computer owner or user wishes to share but rather for his or her identity. Instead, we regard Doe 3’s expectation or privacy for sharing copyrighted music through an online file-sharing network as simply insufficient to permit him to avoid having to defend against a claim of copyright infringement.”