In December, Third
Degree Films, an adult film company, filed a California copyright infringement
action against Does 1 through 2010. In the complaint, Third Degree accuses each
Doe of impermissibly reproducing and distributing at least a substantial
portion of Third Degree's copyrighted adult movie.
defendant is known to Third Degree only by their internet protocol (IP) address.
However, Third Degree filed an ex parte
application for leave to take limited discovery prior to a Rule 26 Conference.
Third Degree sought early discovery in order to serve subpoenas on internet
service providers (ISPs) to determine the subscribers names, addresses, and
e-mail addresses associated with the IP addresses. Without such discovery, Third
Degree alleged that it would be unable to identify the defendants with
sufficient particularity to effect service of process.
A March order granted Third Degree's discovery motion.
Pursuant thereto, Third Degree served a subpoena on Purdue University as an ISP,
which provides internet service to its students.
Doe No. 26 is a
19-year-old student enrolled at Purdue. The subpoena compelled the disclosure of Doe
No. 26's name, address, telephone number and email address. On July 8th,
Doe No. 26 filed an Indiana motion to quash the subpoena. Doe No. 26 argues
that the subpoena requires disclosure of personal, confidential and protected
information, subjects Doe No. 26 to undue burden and threatens reputational
In support of the
motion, Doe No. 26 argues that:
... an IP address is not equivalent to a person or
entity. It is not a fingerprint or DNA evidence. Indeed, far from it. In a
remarkably similar case in which an adult entertainment content producer also
sought expedited discovery to learn the identity of persons associated with IP
addresses, United States District Judge Harold Baker of the Central District of
Illinois denied a motion for expedited discovery and reconsideration, holding
that, "IP subscribers are not necessarily copyright infringers. ... The
infringer might be the subscriber, someone in the subscriber's household, a
visitor with her laptop, a neighbour, or someone parked on the street at any
given moment." See April 29, 2011 order in VPR International v. DOES 1-1017,
C.A. 11-2068 (Central District of Illinois) (Judge Harold A. Baker) [enhanced version available to lexis.com subscribers] ....
Doe No. 26 tells the
story of a child pornography raid based on an IP address, with the ISP providing
the subscriber's identity and location. The raid revealed no pornography on the
family computers, and federal agents learned that they had raided the wrong
home. The pornographic downloads were eventually traced to a neighbour who had
used multiple IP subscribers' WI-FI connections.
Doe No. 26 makes the
point that at the time of the alleged copyright infringement, he or she was
surrounded by other college students and a roommate who was known to use a
router and WI-FI connections for internet access. Specifically, Doe No. 26
The opportunities for individuals other than DOE No.
26 to wirelessly access DOE No. 26's IP address for their own purposes is too
great to support any correlation between DOE No. 26 and the IP address on the
one hand, and the alleged copyright violation that Plaintiff seeks to prove on
the other hand. Here, the risk of reputational injury to a promising young
college student from public exposure and association (even if later disproven)
with the Third Degree Films
allegation, is too great and presents undue burden to DOE No. 26.
View or download the amended complaint filed in Third Degree Films v Does 1-2010,10-cv-05862
(N.D. Cal. 3-29-11)
View or download the motion for leave to take limited
discovery filed in Third Degree Films v Does 1-2010,10-cv-05862
(N.D. Cal. 3-29-11)
View or download the motion to quash filed in Third Degree Films v Does 1-2010,11-mc-00002
(N.D. Ind. 7-8-11)
For more information, read:
3-12B Nimmer on Copyright Chapter 12B: Liability for Online
Copyright Infringement (Non-subscribers can purchase Nimmer on Copyright at the LexisNexis Bookstore)
The previous chapter catalogs an expansion of the
notions of vicarious liability and contributory infringement, 1 doctrines which
in turn were treated as a general matter in the chapter before it. 2 Among the
many particular questions to arise as to the treatment of related defendants, 3
one of the most difficult concerns the liability of online service providers
for copyright infringement by others that may traverse the providers'
facilities. The current chapter expands on that topic, in light of an amendment
to the Copyright Act geared to this precise issue. Before reaching that
amendment, however, the prior state of the law wants exposition.
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