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Court for the District of Columbia has upheld a magistrate's order preventing peer-to-peer file-sharing defendants from proceeding anonymously. Hard Drive Prods. v. Does 1 - 1,495, 2012 U.S. Dist. LEXIS 137719
(D.D.C. Sept. 26, 2012) [enhanced version available to lexis.com subscribers]. The
order, which prevented any defendant from continuing without identifying
himself or herself, held that individuals "who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information."
Frontier Foundation (EFF) filed a motion for emergency stay and reconsideration
of the order. EFF argued that:
motion, all motions to quash were placed under seal.
BitTorrent file sharing was, "on some level," expressive activity,
the District Court for the District of Columbia agreed that defendants were
entitled to some First Amendment protection of their anonymity. However, citing
Arista Records LLC v. Doe, 2008 U.S.
Dist. LEXIS 34405 (D.D.C. 2008) [enhanced version available to lexis.com subscribers], the court
noted that because defendants' expressive activity was alleged to infringe
plaintiff's copyright, defendants' First Amendment right to anonymity was
whether defendants' motions to quash should remain under seal, the District
Court for the District of Columbia weighed plaintiff's need for defendants'
identities against defendants' limited First Amendment right to anonymous file
sharing. EFF unsuccessfully argued that the court should adopt the five-part
test set forth in Dendrite Intern., Inc.
v. Doe No. 3, 2001 N.J. Super. LEXIS 300 (App.Div. 2001) [enhanced version available to lexis.com subscribers]. Instead,
the court applied the five-part test set forth in Sony Music Entm't Inc. v. Does 1-40, 2004 U.S. Dist. LEXIS 14122
(S.D.N.Y. 2004) [enhanced version available to lexis.com subscribers]. Because
each of the five Sony factors supported disclosure of defendants' identities,
the court held that plaintiff's need for defendants' identities to pursue its
copyright infringement claims outweighed defendants' First Amendment interests
in anonymity. Consequently, all sealed motions to quash were ordered unsealed.
motion to stay was denied, EFF was granted leave to file an amicus curiae brief
on the First Amendment issue. The District Court for the District of Columbia concluded that:
EFF's proposed brief is helpful because it raises defendants' First Amendment
right to anonymous speech, an issue not developed fully in the motions to quash
filed by defendants nor discussed in the Magistrate Judge's December 21 Order. Because
defendants' "First Amendment rights must be considered before the Court
allows the plaintiff to override the putative defendants' anonymity by
compelling the production of these defendants' identifying information,"
the Court will grant EFF's motion for leave to file and consider EFF's See [sic]
First Amendment arguments.
and citations omitted)
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