April 25, 2017

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Second Circuit Copyright Plaintiff Allowed to Subpoena ISP to Discover Defendant’s Name

A recent decision from the District of Connecticut is part of a series of copyright cases where a plaintiff, unable to identify the accused infringer except by the Internet Protocol (or “IP) address used at the time of the alleged infringement, has sought and received pre-service leave to serve a subpoena upon the Internet Service Provider (or “ISP”) associated with that IP address to enable service of process. But, as described below, the nature of the accused infringement here – illegal distribution of pornography – caused the court to impose significant limitations on the requested subpoena.

Internet, CodeIn Malibu Media, LLC v. Doe, plaintiff alleged copyright infringement through defendant’s distribution of its adult films via BitTorrent, a peer-to-peer file distribution network. Plaintiff, however, only could identify the defendant by IP address and not by name, thereby preventing service of process. Plaintiff therefore moved for leave to serve a third-party subpoena on the ISP associated with the IP address that allegedly shared plaintiff’s work prior to service and a Rule 26(f) conference.

The court granted leave for plaintiff to subpoena the purported defendant’s ISP, but with significant and unusual caveats. First, the court limited the subpoena solely to the name and physical address of any subscriber associated with the IP address at issue, and not any additional contact information. Second, the court required the ISP to delay its response to the subpoena, pending notice to the subscriber of the lawsuit and of the subpoena, notice to the subscriber that the ISP would comply with the subpoena, and after allowing the ISP itself an opportunity to quash the subpoena. Third, the purported defendant had 60 days from notice of the subpoena  to move to quash the subpoena. Fourth, the court would permit the purported defendant to litigate the subpoena anonymously. Finally, plaintiff could not publicly file any identifying information about the supposed defendant without further order of the court.

While both the subpoena request and the restrictions placed on it are unusual as a general matter, the court’s concern mirrored the concern raised in other courts under similar circumstances (and at the behest of this same plaintiff) that a defendant accused of distributing adult content may feel coerced to settle the lawsuit merely to avoid being named in the lawsuit. Further, while not mentioned by the court, the subscriber for Internet services may not, as a factual matter, be the accused infringer (e.g., if the subscriber is a business with an accessible wireless hotspot).

The case is Malibu Media, LLC v. Doe, No. 17-cv-195-JAM, in the District of Connecticut. A copy of the opinion can be found here.

© 2017 Proskauer Rose LLP.

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About this Author

William D Dalsen, Proskauer, Private Equity Lawyer, Hedge Fund Litigation Attorney
Associate

Will Dalsen is an associate in the Litigation Department, practicing in the Patent Law, Intellectual Property, and Private Equity & Hedge Fund Litigation groups.

Will practices in the area of complex intellectual property disputes, with a primary focus on patent infringement matters. He has litigated several high-profile patent infringement cases for some of the world's leading technology companies, including Panasonic, Philips, Sony, Mitsubishi and Zenith Electronics.

His practice also includes complex commercial...

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