University Student (a/k/a John Doe No. 26) Challenges IP Address Discovery in Illegal Download/Adult Film Copyright Infringement Case

University Student (a/k/a John Doe No. 26) Challenges IP Address Discovery in Illegal Download/Adult Film Copyright Infringement Case

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.

Currently, each 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 interests.  

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 states:

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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