Court Denies EFF Motion for Emergency Stay of Order Requiring Public Filing of Motions to Quash in Filing-Sharing Case Against Anonymous Defendants

Published On October 18, 2012 | By Melissa Maalouf | General, Litigation, Privacy
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On 9/26/12, in Hard Drive Productions, Inc. v. Does 1-1,495 (2012 U.S. Dist. LEXIS 137719), the D.C. District court denied an emergency stay filed by the Electronic Frontier Foundation (“EFF”) to protect the identities of John Doe defendants wishing to file motions to quash in a BitTorrent file-sharing copyright infringement case.

The plaintiff, Hard Drive Productions, filed a complaint against 1,495 unidentified defendants alleging that each had infringed plaintiff’s copyright by using BitTorrent to download and distribute plaintiff’s movie, entitled “Amateur Alleur—Maelynn.” Since the plaintiff only knew the defendants’ IP addresses, it moved for leave to serve the defendants’ ISPs with subpoenas.  The court granted the motion, but explained that compliant motions to quash filed by the defendants would automatically be placed under seal.  A number of defendants subsequently filed motions to quash.

After the case was referred to a magistrate judge for full case management, however, the magistrate judge issued an order stating that no defendant could proceed further in the case without identifying himself because individuals have no expectation of privacy in their subscriber information given to ISPs.  He therefore ordered defendants who had already filed motions to quash to either place their motions on the public docket or withdraw their motions.

Just two days before the motions were to be placed on public docket, the EFF filed a motion for an emergency stay of the magistrate’s order, as well as for leave to file an amicus brief seeking reconsideration.  EFF argued that the magistrate’s order effectively foreclosed the defendants’ ability to anonymously challenge the subpoena on First Amendment grounds since defendants’ only options were to either file their motions publicly or withdraw them.  EFF further argued that although it is settled that the First Amendment right to anonymous speech does not extend to copyright infringement, it should extend in this case to anonymous file sharing using the BitTorrent protocol given that file sharing is “on some level” expressive activity.

In reviewing the EFF’s motion, the court reviewed the 5-part balancing test set out in Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004):  (1) plaintiff’s concrete showing of a prime facie claim of copyright infringement; (2) specificity of the plaintiff’s discovery request; (3) absence of alternative means to gain the information sought; (4) plaintiff’s need for the information to advance its claim; and (5) defendants’ expectation of privacy.

In denying EFF’s motion, the court found that:

  • Plaintiff made a concrete showing of an infringement claim by proving that it holds the exclusive copyright to the movie, listing the date and time of each allegedly infringing act and assigned IP address, and submitting a declaration from a technician explaining the process of identifying defendants’ allegedly infringing acts;
  • The discovery request was appropriately limited in scope to specific identifying information and for the sole purpose of protecting the plaintiff’s rights;
  • Subpoenaing the ISPs was the only way for the plaintiff to obtain the defendants’ identities since only the ISPs have records of the IP addresses assigned to users on the date and at the time of each allegedly infringing act;
  • Plaintiff could not otherwise name or serve process on the defendants; and
  • Defendants had little expectation of privacy in the subscriber information they provide to their ISPs and their First Amendment rights to anonymity were minimal in this situation.

Accordingly, the court denied EFF’s motion for emergency stay and reconsideration, and ordered unsealed all sealed motions to quash.

However, the court did grant EFF’s motion for leave to file an amicus brief seeking reconsideration of the order.  The court explained that it is solely within its discretion to determine participation by amicus, and that amicus participation is normally appropriate when:  (1) a party is not represented competently or at all; (2) the amicus has an interest in some other case that may be affected by the decision; or (3) the amicus has unique information or perspective.  The court ultimately decided that EFF’s brief would be helpful to the court as it raises defendants’ First Amendment right to anonymous speech, which is an issue that was not developed fully in the motions to quash by defendants nor discussed in the magistrate’s order.

About The Author

Melissa Maalouf’s practice focuses on advising a broad range of clients, from start-ups to established companies, on both U.S. and international data privacy and security issues. Melissa assists clients in drafting appropriate website disclosures, implementing legally-compliant e-commerce flows, responding to FTC Section 5 and state AG enforcement actions, analyzing advertising claims, and children’s online privacy and safety issues. She also regularly helps clients obtain certification under the EU-US Safe Harbor and navigate compliance with divergent international privacy laws.

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